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The Exclusive Remedy of Workers' Compensation
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The Exclusive Remedy of Workers' Compensation

NJ Supreme Court Review 1994-1995

In several landmark cases the New Jersey Supreme Court, in the 1994-1995 term, redefined the parameters of the Workers' Compensation Act as it applies to occupational illness, scientific evidence, the standard of proof to determine permanency, apportionment of responsibility, exclusivity of remedy and off-premises liability. These areas of the law are also the focus of various New Jersey Appellate Division case decisions as well as several federal court rulings. Some of the decisions rendered by the Supreme Court were the most significant rulings in the history of workers' compensation case law. 

Exclusivity Of Remedy
In the area of exclusivity of remedy, the court did not extend immunity from tort liability to a general employer for the alleged negligence of a lent employee. A truck driver was lent by a general contractor to another affiliated company. Both companies had the same principles. The lent employee drove a truck over an employee of the affiliated company and caused his death. The dependent of the deceased employee recovered workers' compensation benefits against the affiliated employer. The estate of the deceased employee was also permitted to pursue a tort action for negligence against the general contractor. The court reasoned that the workers' compensation exclusivity bar did not pre-empt the negligence action. While the lent employee was considered to be a special employee of the affiliated company which had the right to control his actions, the lent employee did not provide derivative immunity from tort liability to the general contractor. Volb v. G.E. Capital Corporation, 139 N.J. 110 (1995).

Justice Pollock dissented in this matter relying upon the fact that the general employer lacked control over the lent employee; therefore, the employer lacked the ability to control the risk of injury to the co-employee. Additionally, he contended that not every injured worker should have the ability to recover dual benefits both under the Workers' Compensation Act and under a tort claim. Imposition of the additional third party action would result in additional costs being paid by the employer, which Justice Pollock considered to be a tax not intended by the Legislature. 

The exclusivity bar was also the subject of several opinions of the Appellate Division and of the United States District Court for the District of New Jersey. In an age, race and nationality discrimination action brought by an employee against Campbell Soup Company under Title VII, 42 U.S.C. Sec. 2000e, et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 621 et. seq.; 42 U.S.C.S. sec. 1981; and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5 et. seq., the United States District Court held that the Workers' Compensation Act is not a bar for claims under the NJLAD. The court relied upon the Supreme Court of New Jersey's findings in
Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161 (1985) in which the New Jersey Supreme Court permitted a separate tort action against the employer and the employer's physicians by employees who had suffered an occupational disease. The U.S. District Court recognized that the tort bar of the Workers' Compensation Act was not applicable in this case since the alleged discriminatory conduct of Campbell was substantially certain to injure the worker. Therefore, the court concluded that the plaintiff must only show that the employer intended to injure the employee and not that the employer intended to cause the employee specific injuries and specific medical conditions including, in this instance, depression and psoriasis. Khair v. Campbell Soup Company, No. Civ. A.93-1626 (JEI), 1995 WL 366123 (D.N.J. June 12, 1995). 

Public employees of multiple municipalities engaged under the Interlocal Services Agreement, N.J.S.A. 40:8A-1 et. seq., were considered to be co-employees for purposes of the Workers' Compensation Act and barred from recovery under tort. The injured employee was a member of the Old Tappan Voluntary Ambulance Corps. and was responding to an emergency in River Vale pursuant to the Interlocal Services Act under which River Vale and its employees provided emergency call reception and dispatching services for Old Tappan. While responding to the call, the Old Tappan Ambulance Corps. employee suffered a dog bite. She subsequently instituted an action against the patrolman from River Vale as well as the Township of River Vale. The court held that the Interlocal Services Act which permits municipalities to pool their resources and provide joint services to their residents bars a claim in tort for damages against an employee or against the other municipality. The court reasoned that it was the intent of the Legislature to promote and facilitate interlocal and regional service agreements; therefore, a grant of power under the Act was intended to be as broad as was consistent with the general law relating to local government. The court concluded that the claim against the patrolman was barred by the fellow-employee tort immunity doctrine. The claim against the Township of River Vale was remanded to the trial court for reconsideration in light of the Supreme Court's decision in Volb.
Mc Intosh v. De Filippo, 281 N.J. Super. 171 (App.Div.1995), N.J.S.A. 40:8A-1, et. seq. 

The exclusivity bar was also upheld when no substantial certainty of harm to a worker was recognizable. An employee of Johnson Matthey, Inc. was exposed to platinum salts from 1981 to 1990. The employer was in the business of refining platinum which created chloroplatinate salts which are allergic sensitizers. In some instances, workers exposed to platinum salts become sensitized and suffer symptoms such as conjunctivitis, rhinitis, uticarria and dyspnea. There were conflicting studies introduced into evidence demonstrating the percentage of workers who were at risk for developing allergic reactions. A 1989 survey of the plant workers demonstrated that only 3 or 4 of the 233 workers suffered physical allergic reactions. The plaintiffs relied upon a 1951 study demonstrating that 60 to 100 percent of those who were exposed to platinum salts would eventually become allergic.

The court held that the injured worker was unable to demonstrate either medically or statistically that there was a substantial certainty that he or any of his co-workers would suffer harm from the platinum salts after exposure had ended. The court reasoned that there was no substantial medical certainty because the state of scientific knowledge did not permit a definitive conclusion. Additionally, the court noted that the employer had a policy of discharging sensitized employees or attempting to relocate them to employment sites where their exposure was reduced. In fact, both the employer and the union had extensive knowledge of the problem and had made some effort to resolve it.
Diaz v. Johnson Matthey, Inc., 869 F.Supp. 1155 (D.N.J. 1994).

In three separate opinions, the New Jersey Supreme Court reviewed various aspects of apportionment. The tension between science and justice continued to be a pervasive theme in recent decisions handed down by the courts. The subject of scientific evidence and its applicability to the judicial process in complex workers' compensation claims was considered by the court in more than one decision this past year.

The Supreme Court heard a case involving an occupational exposure to multiple solvents and chemicals of both known and unknown composition. Ahmed Akef was employed at BASF where he was exposed to toxic solvents and chemicals from October 24, 1977 through June 23, 1986. During that time, he was exposed to esoteric chemicals which not only precipitated an asthma condition but which also included spermatoxic compounds. After the petitioner left work at BASF, he was diagnosed with azoospermia (sterility). The petitioner went on to work at Chemo Dynamics as an organic chemist for three weeks in 1987 where he produced sulfur dioxide reactions in a poorly ventilated area. After several subsequent employments of short duration, the petitioner worked as a security guard for Celotex Corporation where he was required to walk long distances inside and outside the plant. The facility manufactured roof shingles, and the petitioner was exposed to dust from the hot asphalt and fumes from the trucks entering and leaving the plant.

The medical conditions of the petitioner were attributed to two employers, and the court utilized both the Bond Doctrine and apportionment of responsibility theories to balance liability and economic responsibility. Scientific evidence presented ruled out other causes of the sterility except for the exposure to spermatoxic compounds. Therefore, BASF was held liable for that condition. On the other hand, the court recognized that the Bond Doctrine assesses liability solely on the last employer [
Bond v. Rose Ribbon Mfg. Co., 42 N.J. 308 (1994)] using the standards of when the disability was obvious, diagnosable and capable of measurement. The court relied upon the judge of compensation's findings that responsibility for the pulmonary disease of acute bronchial asthma rested with the last employer, Celotex Corporation. The Appellate Division had indicated that the petitioner's pulmonary condition was primarily caused by his employment at BASF, the first employer, but the Supreme Court relied upon the trial judge's findings that the expert witness could not definitively apportion a percentage of the disability. Akef v. BASF Corporation, 140 N.J. 408 (1995).

In contrast to Akef is the Gulick decision in which the factual situation did not permit utilization of the Bond Doctrine. In Gulick, the petitioner was employed as a pipefitter and plumber from 1950 through November of 1987 and worked in both commercial buildings and homes. During that employment he was exposed to asbestos; he mixed asbestos fiber and worked with boilers and asbestos blankets and other insulation. He was employed by H.M. Enoch, Inc. for 3 full days in November of 1987. The petitioner testified that he installed refrigeration and heat lines and removed asbestos in this employment and that the atmospheric conditions were dusty and dirty. During those specific days he was short of breath, he coughed up blood, and he found that he had difficulty performing the tasks required for the job.

The petitioner had a smoking history of one pack per day for 40 years and a history of alcohol consumption of six cans of beer per day. Pre-existing medical conditions included: emphysema; bilateral pneumonia (2 bouts); hypertension; osteoarthritis; removal of a cyst behind the right ear; ophthalmological disability and back and head injuries. While the trial judge dismissed the claim as to both the pre-existing employers, the Proctor Company, and the Second Injury Fund, the Appellate Division reversed and remanded the matter. 

Based upon extensive expert trial testimony, the Appellate Court determined that the disability of the injured worker should not be attributable to the last employment's exposure of three days but rather to the pre-existing employments and to the Second Injury Fund. The Court relied upon the treating physician who indicated that the petitioner's symptoms were merely exacerbated by the three-day exposure at Enoch. The symptoms that were demonstrated were considered to be only a transient exacerbation of the underlying disease. Likewise, the petitioner's medical expert was unable to attribute any of the petitioner's disability on a scientific basis to the last employer. 

Even though some of the prior employers were not joined in the matter, the Appellate Division stated that the employee should be able to recover against the Second Injury Fund for an unassignable previous permanent disability that would be granted by an employer for previous loss of function. N.J.S.A. 34:15-12 (d). This rationale would allow full compensation to the employee while maintaining a policy consistent with the intent of the Legislature to provide an incentive to hire workers with pre-existing conditions. The court concluded that the risk of total disability as a result of successive and unassignable injuries is borne by all employers in the State of New Jersey on a pooled basis through their payments to the Second Injury Fund.
Gulick v. H.M. Enoch, Inc., 280 N.J. Super. 96 (App.Div.1995).

Quite contrary to the application of the Bond Doctrine is the theory invoked by the New Jersey Supreme Court in a liability action involving an asbestos-related exposure. The New Jersey Supreme Court held that the continuous-trigger theory was applicable. Under such a theory, the carrier is liable during each phase of environmental contamination including exposure, exposure in residence in the body tissue, and at the time of the manifestation of disease. The court rationalized that the continuous-trigger theory in the asbestos case is one that is related to both time on risk and degree of risk assumed. The application of the continuous-trigger theory in workers' compensation matters in the future will move to enhance safety in the workplace, provide a larger basis for economic recovery against culpable parties and relax some of the responsibility that may be attributable to the Second Injury Fund.
Owens-Illinois, Inc. v. United Insurance Co., 138 N.J. 438 (1994).

Scientific Evidence
In a landmark decision, the Supreme Court unanimously recognized that an occupational heart condition is compensable under the Workers' Compensation Act. While recognizing that diseases are complex and their causes multi-factoral, the court recognized that experts can disagree on the relative roles of an occupational-exposure and personal-risk factors in causing a coronary condition. The court ruled that the appropriate section of the Workers' Compensation Act to address the issue of causation in occupational disease, including cardiovascular, is N.J.S.A. 34:15-31 and not solely N.J.S.A. 34:15-7. Recognizing that the 1979 amendments to the Workers' Compensation Act required an occupational exposure to be "characteristic" of and peculiar to a particular employment, that there be restricted compensability for disability due to "deterioration of a tissue, organ or part of the body in which the function of the tissue, organ or part of the body is diminished due to the natural aging process," and that the disease be "due in a material degree to causes or conditions" peculiar to the place of employment, the court recognized that a truck driver may suffer cardiovascular disability as a result of exposure to carbon monoxide even though the employee had other pre-disposing risk factors including smoking, obesity, and a genetic predisposition. The court referred to the example of a teacher who developed asbestosis from working in a classroom with a flaking asbestos ceiling where the disability arising from the asbestos exposure was recognized as being compensable under the New Jersey Workers' Compensation Act. 

The court outlined a three-level test in which the petitioner must show causes or conditions characteristic of the occupation or place of employment that substantially contributed in a material way to the cardiovascular disease. First, the disease must be due in a material degree to causes arising out of the workplace and that are characteristic of or peculiar to a particular trade, occupation, process, or place of employment. Second, there must be proof by suitable medical evidence that the work exposure exceeded personal risk factors. Finally, it must be shown that employment substantially contributed to the disease. Medical testimony or other relevant circumstances, including the extent of the occupational condition, the extent of the non-work-related exposures and conditions, and the manner in which the disease developed, should be relied upon. While recognizing an occupational cardiovascular condition, the Supreme Court again highlighted the social remedial intent of the Workers' Compensation Act by indicating that an injured worker will not be denied recovery because an employer has failed to determine whether the workplace is safe.
Fiore v. Consolidated Freightways, 140 N.J. 452 (1995).

In a case reviewing the standard of proof required to establish permanency in a workers' compensation claim, the court mandated that more comprehensive and professional evidence be provided by the medical experts and that the judge of compensation provide a decision with better clarity and precision.

A tractor-trailer driver filed a claim for an injury to his left shoulder and back. The petitioner underwent a regimen of physical therapy, incurred no compensable lost time, and had a negative x-ray and MRI. The petitioner testified at trial that he was unable to return to work for his former employer because his position required heavy lifting and pressing the clutch which, when performed, would result in back pain. He then secured work as a security guard. His everyday activities with regard to home repairs were also adversely affected. The petitioner also testified to severe limitation of motion including a very slight crepitus in the left shoulder.

Standard of Proof
The court analyzed the extent of the professional analysis of the findings offered by the medical experts and found them totally lacking. The raw results of range of motion testing in addition to independent subjective complaints were not adequate to sustain the burden of proof. The evidentiary requirement that the petitioner has sustained a functional restriction of the body and a lessening to a material degree of his working ability or a significant and not minor injury as required by N.J.S.A. 34:15-36 must be satisfied by the professional analysis of the medical experts and a well-articulated opinion by the court.

The gray area between mere subjective complaints and objective findings is not a well-defined location but one which requires both professional and judicial analysis. The interaction between justice and science also pervades this area of the law. The medical expert must look beyond clinical and laboratory tests such as x-rays and physical manifestations of inflammation, swelling, spasm, etc. The extent of the analysis required becomes greater as the disability presents itself as less severe, approaching a "minor injury." The court insists that the medical experts interpose professional analysis to assist the court in the area between mere subjective complaints and an objective finding of disability.

The court in Colon further reiterated and approved the statutory requirements set forth no numerical threshold value in determining the extent of disability. In refusing to follow the Appellate Court, which attempted to assert a bottom-line benefit number threshold of 2.5% of partial total, the Supreme Court held that the Legislature had no intent to establish a numerical limit and that a decision by the court to the contrary would be counterproductive to the Act's intent by causing the petitioner's medical experts to merely raise estimate values to exceed the numerical threshold.

The court again brought to the attention of the workers' compensation bench the need to provide comprehensive opinions which must include factual findings to support a determination of partial-permanent disability. While recognizing the difficulty in analyzing disability in certain minor claims, the court gave guidance to the trial judge to assist in determining whether demonstrable objective medical evidence exists.
Colon v. Coordinated Transport, Inc., 660 A. 2d 1146 - NJ: Supreme Court 1995.

The Coming and Going Rule
The court has maintained consistency with its restrictive opinions concerning the coming and going rule. It held that an employee who traveled out of town and injured herself when she slipped and fell on ice and snow while walking across the only sidewalk leading from an office building parking lot to the entrance of her employer's branch office was not entitled to workers' compensation benefits. The court concluded that this parking lot was not under the "control" of the employer and that therefore the respondent's employment had not commenced when the employee fell. Novis v. Rosenbluth Travel, 138 N.J. 92 (1994).

Similarly, the Appellate Division maintained its restrictive view of the special mission rule. The reviewing tribunal determined that a trip must not have been made to accommodate the petitioner's own personal time schedule and that there must be an enhanced exposure to hazards attending the trip. A sergeant employed by the New Jersey State Police had a non-work related neurological disorder, multiple sclerosis. He suffered an exacerbation of the condition resulting in blurred vision. As a pre-condition for his return to work, the sergeant was required to undergo a physical examination. While off duty and while traveling from his home to the doctor's office, the state trooper was involved in a motor vehicle accident that caused him personal injury. The court determined that the motor vehicle accident was not compensable and that the event could not be considered to have occurred within the course of his employment. The trip was considered to be a "special mission" since a trip to obtain medical clearance to return to full-time work following treatment for a non-compensable condition was not considered to be in the direct performance of the sergeant's assigned duties.
Carberry v. State of New Jersey, Division of State Police, 279 N.J. Super. 114 (App.Div.1995).

The nature and extent of potential defenses to workers' compensation claims have been the subject of judicial review during this court term. In a per curiam decision, the New Jersey Supreme Court prohibited the expansion of the enumerated statutory defenses to include that of fraudulent misrepresentation. The court recognized that N.J.S.A. 34:15-7 specifically lists three statutory defenses to an employee's claim for workers' compensation benefits. The court did not consider it reasonable to infer that the Legislature intended to recognize material misrepresentation as a bar to a workers' compensation claim. 

Ahmed Akef did not disclose on his application for employment with Celotex Corporation that he suffered from pre-existing illnesses or medical conditions. On a pre-employment physical, the company doctor found no limiting conditions which would restrict his employment. The court recognized that the respondent has the burden of proof to substantiate a prior functional loss and that the respondent's own examining physician did not have any positive findings at the time of the pre-employment physical.
Akef v. BASF Corporation, 140 N.J. 408 (1995).

The Appellate Division had the opportunity to review the issue of the statute of limitations and its interpretation about an application to review or modify a formal award pursuant to N.J.S.A. 34:15-27.
Milos v. Exxon Co., USA, 281 N.J.Super. 194 (App.Div.1995), aff'd Milos v. Exxon Co., USA, 671 A. 2d 120 - NJ: Supreme Court 1996. The court determined that an employee who participates in an employer-sponsored voluntary program to monitor the existence or progression of an asbestos-related disease would be considered to have received medical treatment which extends the jurisdictional limits as prescribed by the statute. Walter Milos was an employee at Exxon Co. from 1937 through 1978. In April of 1985, he filed a claim petition and was awarded disability benefits for pulmonary asbestosis. The petitioner filed an application to reopen and modify the formal award yearly. Within two years of the last medical monitoring evaluation of the petitioner, a new claim petition was filed alleging an increase in the disability flowing from pulmonary asbestosis. At about the same time, the petitioner had a medical expert evaluation demonstrating an increase in his disability. The respondent raised the defense of the doctrine of res judicata as well as the statute of limitations, alleging that even though the medical monitoring had occurred within the last two years, the original diagnosis of pulmonary asbestosis was the subject of a judgment for which payment was finalized more than two years prior to the filing of the application to review and modify. The court held that the Division of Workers' Compensation had jurisdiction and deemed the voluntary medical-monitoring program to constitute a payment of benefits, thereby rendering the application to modify and review the prior award within the two-year time limit established by the statute. The court recognized that medical monitoring is warranted in those cases in which the disease may be progressive and in which such surveillance would be beneficial to the health of the employee and perhaps prevent more serious medical consequences. Therefore, this policy is consistent with the social remedial nature of the Workers' Compensation Act.

In the adjudication of another application to review and modify a formal award, the Appellate Division permitted benefits to be paid for a back condition even though the prior awards were only for left leg disability. The court indicated that the statute of limitations did not bar such a claim since its only requirement is that the petitioner shows a subsequent increase in the nature and extent of her incapacity arising from or causally connected with the original compensable event. In the case of
Brandt-Shaw v. Sands Hotel, 659 A. 2d 524 - NJ: Appellate Div. 1995, the petitioner fell in July of 1987 and injured her back and left knee. A judgment in January of 1989 awarded 22% of the left leg and no disability for the back. An initial application to review and modify the award resulted in a second judgment in May of 1991 with an increased disability totaling 30% of the left leg. A second application to review and modify the award in 1993 was based upon treatment for the petitioner's back. The court permitted the entry of an award for the back condition noting that the defense of res judicata was not applicable since the Workers' Compensation Act provides for continuing jurisdiction for modification of the original award.

The Appellate Division determined that school board employees are to be fully compensated for the time during which they are temporarily disabled without regard to whether the disability period falls within the school year or during the summer recess. The court rationalized that, in utilizing the term "calendar year" rather than "school year", the Legislature considered school employees to be paid yearly.
Porter v. Elizabeth Board of Education, 281 N.J. Super. 13 (App.Div.1995), N.J.S.A. 18 A:30-2.1.

Payment of Medical Benefits
In a case involving the payment of medical benefits, the Appellate Division concluded that where an employer is uninsured, an injured employee should be permitted to exhaust all other sources of potential payment before he or she is required to make payment to the provider of medical services. The employee is to be considered the last source of payment for a work-connected medical expense. 

While a workers' compensation case was pending, a medical provider brought suit against an injured worker for the payment of its bill. The appellate court held that the employee might first seek benefits from the Uninsured Employers' Fund in accordance with N.J.S.A. 34:15-120.2. Additionally, the president of the uninsured respondent may be personally held liable for the claim for medical benefits. N.J.S.A. 34:15-79. In any event, a medical provider can assert a claim against an employee only after the Division of Workers' Compensation has determined that the treatment is non-compensable.
West Jersey Health System v. Croneberger, 275 N.J. Super. 303 (App.Div.1994).

The issue of pension offset was considered by the Appellate Division and by the U.S. District Court in a series of two cases. In Bunk v. Port Authority of New York and New Jersey, 279 N.J. Super. 613 (App.Div.1995), the court recognized that the simultaneous receipt by a Port Authority employee of both New Jersey Workers' Compensation benefits and a New York disability pension was permissible. Judge Pressler's opinion cites the recent decision of the United States Supreme Court in the matter of Hess v. Port Authority Trans Hudson, 115 S. Ct. 394 (1994) in which its denial of the Port Authority's claim of Eleventh Amendment immunity from suit in the federal court required a re-examination of the corporate structure of the Port Authority and its relationship as an interstate compact to New York and New Jersey. In this decision, the appellate court cites the Supreme Court opinion in Hess as reversing
Wright v. Port Authority, 263 N.J.Super. 6 (App.Div. 1993) certif. denied, 133 N.J. 142 (1993).

Therefore, an injured worker who is receiving a disability pension from the State of New York is also eligible to receive workers' compensation benefits for those injuries in the State of New Jersey. The New Jersey courts have concluded that employees of Port Authority are not members of any New Jersey pension system covering public employees under N.J.S.A. 43:15-43. The court concluded that the Port Authority cannot be considered an "other governing body" as used by N.J.S.A. 34:15-43 which is defined as either "a governing body of this state or a governing body whose New Jersey employees are subject to the unilateral exercise of this state's legislative authority." Since the Port Authority is a bi-state agency, its employees would not be subject to offset provisions and are permitted to receive both a New York pension and New Jersey workers' compensation benefits.

A decision with widespread impact concerning Social Security offset was rendered by the Third Circuit Court of Appeals in the matter of Krysztoforski v. Chater, 55 F.3d 857 (3rd Cir. 1995). On January 27, 1989, the employee suffered a left ankle injury and was paid temporary disability benefits from the date of accident through November, 1990 under Pennsylvania State Law. Eventually, 250 weeks of compensation were awarded in December of 1990. Shortly thereafter, this was commuted to a lump sum benefit of $76,665.00. Unfortunately, following the left ankle injury, the petitioner sustained a cerebral vascular attack (CVA) on October 27, 1989, which rendered him permanently paralyzed and aphasic. Social Security disability insurance (SSDI) payments of $852.70 per month were initially paid with an onset date of October 27, 1989. The Social Security Administration computed an offset under 42 U.S.C. s 424a and prorated the original workers' compensation lump sum award for the left ankle to be $260.66 per week through September 1995 or 250 weeks based upon the initial accident of January 27, 1989, even though it was the CVA which rendered the worker totally disabled on a subsequent date. The Third Circuit Court of Appeals held that the Social Security Administration may offset benefits for an unrelated prior claim where the payments cover the same period of time. The Third Circuit Court of Appeals indicated that federal law governs in determining whether a workers' compensation loss-of-use award should be offset against Social Security disability benefits and that the Social Security Act limits the amount of benefits an individual may receive from the combined SSDI and workers' compensation programs. The court relied upon the Senate committee's report in interpreting the enactment of the United States Code. The report clearly indicated that it was the committee's belief that it is desirable as a matter of sound principle to prohibit the payment of excessive combined benefits. It was the clear intent of the statute to maintain a level of income for disabled workers while avoiding duplication of benefits. 

Causal Relationship
The role of medical experts has been clearly defined by the court. If the respondent desires to have medical evaluations or diagnostic tests conducted by its experts, these must be performed in a timely fashion. A respondent may request that a petitioner submit to a stress test, if such a test is not a threat to the petitioner's health or life. The request for the test must be made on a timely basis and not in the middle of trial after three or four witnesses have already testified. The Appellate Division concluded that the workers' compensation judge had not abused its discretion when it denied an employer's motion for the injured worker to submit to a stress test since the request was delayed until the middle of trial and since the employer had notice that such a diagnostic test might be useful as reported by its own expert prior to trial. Viera v. The Level Line, Inc., 276 N.J.Super. 646 (App.Div.1994). 

In order for a party to prevail with regard to the issue of causal relationship, findings must be supported by substantial or sufficient credible evidence in the record in order to establish compensability. When a claimant failed to establish a causal connection between the exacerbation of multiple sclerosis and occupational exposure to chemicals and temperature variations, the Appellate Division deemed the claim non-compensable. The petitioner worked in a janitorial capacity from 1966 to 1985 for the Port Authority of New York and New Jersey. In 1985 he was assigned to be a grounds attendant in Newark Airport where he was exposed to pesticides, insecticides and herbicides. Since he worked outside, he was also exposed to extreme temperatures. The petitioner was first diagnosed in 1975 with multiple sclerosis; however, he continued to work despite experiencing blurry vision and wobbly legs in the early 1980s which required hospitalization on three occasions. Following his assignment to the gardener post position, he experienced increased discomfort when the temperature exceeded 75 degrees or fell below 40 degrees for a period of three hours. The petitioner's expert cited stress at work, exposure to toxic substances and exposure to temperature variations as aggravating factors to multiple sclerosis. The expert could not cite any medical literature in support of this opinion. Furthermore, the petitioner's expert admitted that the condition could have been exacerbated solely by natural causes. The expert's general reliance upon Silent Spring by Rachael Carsen indicating that exposure to any chemical in any quantity can be harmful was not deemed by the court to be sufficient objective or scientific evidence to establish the causal connection between the chemical exposure and temperature variations and the exacerbation of the underlying multiple sclerosis condition.
Wiggins v. The Port Authority of New York and New Jersey, 276 N.J.Super. 636 (App.Div.1994).

As we move toward the twenty-first century, it is becoming more apparent that the court is attempting to bring the case law to a level supported by newly available scientific evidence. This direction can only enhance the impact which the Workers' Compensation Act, as interpreted by the courts, has upon both employers and employees.


By Jon L. Gelman, Attorney at Law

The author, Jon L. Gelman, practices law in Wayne, NJ. He is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman  1.973.696.7900 have represented injured workers and their families who have suffered occupational accidents and illnesses.

Recommended Citation: Gelman, Jon L.,  The Exclusive Remedy of Workers' Compensation, (2020),

© 1995-2023 Jon L Gelman. All rights reserved..

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This article is reprinted with permission from the September 1, 1995 issue of the New Jersey Law Journal. © 1995 NLP IP Company, 141 NJLJ 10 S40 (September 1995). 

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