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Is workers’ compensation always an injured worker’s exclusive remedy?

Most readers are probably aware that workers’ compensation benefits come at a cost to employees. The way the system is set up involves an exchange between employers and employees. Employers, for their part, promise to provide swift compensation to employees who suffer workplace injury while injured employees, for their part, waive the right to sue their employers when an accident occurs. This is the case in every state. In New Jersey, that limitation applies not only to injured employees, but also to the survivors of workers who die in on-the-job accidents.  

New Jersey law does provide an exception to the general rule that workers’ compensation is the exclusive remedy for injured workers. That exception is for cases where the employee’s injury is the result of an “intentional wrong” on the part of the employer. 

Unfortunately for employees, the burden of proof to overcome New Jersey’s exclusivity rule is very high. According to the American Bar Association, the injured worker has to be able to demonstrate that the employer acted “with substantial certainty” that harm would result to workers. It is not sufficient to prove that the employer was grossly negligent in his or her disregard for safety.

What exactly would it take to meet the substantial certainty standard? What about a willful violation of a safety standard established by the Occupational Safety and Health Administration? What about knowingly leaving a specific unsafe condition unaddressed? What about failing to routinely maintain workplace equipment to ensure it is in working order? The answer depends on the circumstances of the case, and it is important for those injured on the job to consult with an experienced attorney to have their questions answered.

In future posts, we’ll explore the issue of “substantial certainty” further with an eye toward giving readers a better sense of when they believe they may have the ability to pursue their employer in court.

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