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What is the exception to the exclusive remedy provision of the New Jersey Workers’ Compensation Act?

Work-related and workplace accidents occur every year. In 2019, in New Jersey, employers reported nearly 100,000 nonfatal job-related accidents and illnesses in the private and public industries employment sectors. When an employee sustains injuries or becomes ill in his employment, he may seek compensation from his employer. However, the exclusive remedy under New Jersey law for work-related accidents and illnesses is workers’ compensation. Therefore, employees are unable to file civil lawsuits against their employers.

Workers’ compensation is no-fault insurance that employers must carry by New Jersey law. The insurance cover employees if they sustain injures or illnesses that arise out of their employment. Insurance pays for medical care and provides wage compensation to the employee while they are out of work.

The employee must give actual notice of the employment-associated accident or illness. The employee submits a claim for compensation to the employer for the workers’ compensation provider to approve or deny. If the employer carries self-insurance, it determines the approval or denial of the employee’s claim.

Unlike civil lawsuits, employees cannot seek damages for pain and suffering in a workers’ compensation claim. The exclusive remedy provision of the New Jersey Workers’ Compensation Act provides an exception, which allows injured and ill employees to file a civil case. The exception states that the employee may file a lawsuit outside workers’ compensation if the work-related accident or illness occurred by an employer’s intentional wrong.

The analysis is a two-part test. The injured employee must prove that the employer’s action or omission was an intentional wrong. Then, the worker must show the wrongful behavior caused the employee’s work-related accident and resulting injury or illness. In the civil lawsuit, the court applies a substantial certainty standard to determine whether the employer was intentionally wrong. The case looks at the employer’s conduct. It also analyzes the context of the behavior as to the employment or industry. The court must determine if the injury or illness is typical of or exceeds foreseeable occurrences of the job.

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