Workers’ comp is usually the “exclusive remedy” when an employee is injured on the job, meaning the worker can’t sue the company. But when OSHA issues a willful citation, does that open the door for a successful lawsuit?
Kenneth Van Dunk was a construction worker.
A construction project was on deadline and had already experienced delays because of record rainfalls.
A trench had to be lined with a special fabric. Workers were having trouble stretching the fabric over the 18-to-20-foot deep trench.
Van Dunk volunteered to go into the trench and “fix” the fabric. His supervisor stopped him, saying he was concerned for his safety because the trench wasn’t shored.
After more attempts to spread the fabric failed, the supervisor directed Van Dunk to go into the trench, which collapsed in less than five minutes, causing him to suffer serious injuries.
Van Dunk sued the company, James Construction, saying this was an “intentional wrong,” and therefore fell outside the workers’ comp exclusive remedy.
James filed to get the case thrown out, and a court did so. Van Dunk appealed.
Van Dunk argued this was an intentional wrong because OSHA issued James a willful citation for failing to protect employees from cave-ins, not properly sloping the excavation and sending the employee into an unprotected trench that was 20 feet deep.
The company said the OSHA fine had nothing to do with whether Van Dunk could sue for intentional wrong.
The appeals court refused to throw out the case and said it should go to a jury.
While the OSHA fine wasn’t necessarily enough to prove intentional wrong, the court said a jury could use that as a factor. It said the lower court didn’t give significant credit to the OSHA citation. The court also said this case was “a close call.”
Now the case will either go to a jury trial or possibly be settled out of court for a substantial sum.
This case opens the door for OSHA’s willful citations to be taken into consideration in this state and possibly others when it comes to deciding whether an injured employee or the family of an employee who was killed can sue an employer for intentional wrong — an exception to the workers’ comp exclusive remedy.
And under administrator David Michaels, OSHA has been issuing more willful citations.
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Van Dunk v. Reckson Associates Realty Corp., Superior Court of NJ, Appellate Div., No. A-3548-08T2, 8/30/10.