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What's Hot in Workers' Comp

Appellate Division affirms summary judgment against employer due to the exclusive remedy provision of the Act and affirms summary judgment, in part, to an insurance carrier in excluding coverage for intentional wrong claims.

Cannon v. Bravo Pack, Inc. and Kraft Machines Inc. v. Employers Preferred Ins., No. A-1702-21 (Oct. 31, 2023) and Cannon v. Bravo Pack, Inc. and Bravo Pack, Inc. v. Employers Preferred Ins., No. A-1731-21 (Oct. 31, 2023)

November 1, 2023

by Kiara K. Hartwell

In the first of these two cases (No. A-1702-21), the Appellate Division affirmed an order granting summary judgment to Bravo Pack (Bravo), dismissing all claims, cross-claims, and third party claims against Bravo. 

In reviewing the summary judgment record in a light more favorable to the plaintiff, the plaintiff was hired by Bravo and began working on March 18, 2019. When he arrived, the manager directed another employee, Alexander Gongora, to train him. Gongora trained other employees before, but received no formal instructions nor was provided with any operating manuals. On that day, Gongora was working on a Kraft bubble mailer machine, which was noted to routinely jam from 10 to 15 times a day. The manager testified that employees were instructed on how to clear the jam, but acknowledged Gongora’s method to remove the plastic guard cleared the jams more quickly. The manager advised Gongora not to remove the guard, but was aware he did not always listen.

The plaintiff testified Gongora provided minimal instructions regarding the Kraft machine. It jammed several times in the morning, which Gongora fixed. However, it jammed for the first time at the discharge end, and Gongora left the plaintiff to remove it. The accident occurred when the plaintiff attempted to remove the jam and the blade caught his left hand, partially amputating three of his fingers.

OSHA performed an investigation and cited Bravo for multiple violations. In August 2019, the plaintiff sued Bravo, alleging his injuries occurred due to Bravo’s intentional conduct and, thus, his claim was not limited to workers’ compensation. He submitted an expert report by a professional engineer, who opined the plaintiff was exposure to a “high risk level” of imminent major injury and removal of the guard created substantial certainty of an accident. He relied on a risk assessment program called Designsafe in forming his opinions.

Bravo filed an answer and later asserted a third-party complaint against its insurer, employers Preferred Insurance Company. In August 2021, Bravo moved for summary judgment, arguing the exclusive remedy provision of the Workers’ Compensation Act barred the plaintiff’s claims. The judge heard arguments and in November 2021, issued an order and written opinion granting summary judgment in favor of Bravo, thus dismissing all claims against Bravo with prejudice. The judge determined the plaintiff did not have evidence to support a finding of substantial certainty of injury nor that this accident would fall into the narrow exception for injuries caused by an employer’s intentional wrong. The plaintiff argued there was sufficient evidence of intentional wrong, that the judge erred in finding no reasonable jury would find his accident was substantially certain, and that the judge erred in finding his proofs did not prove an intentional wrong. 

The Appellate Division found the judge’s analysis in his written opinion were well reasoned and affirmed. Specifically, the Appellate Division found Bravo’s conduct did not rise to the standard of an intentional wrong or substantial certainty of an injury.

In the second of these matters (No. A-1731-21), the Appellate Division affirmed the portion of an August 12, 2021, order granting partial summary judgment to employers Preferred Insurance Company (EPIC) as the insurance policy was clear in excluding coverage for intentional wrong claims. There was also a cross-appeal by EPIC, but it was dismissed as moot as this portion was settled between the parties.

As noted above, the plaintiff was injured in March 2019 and sued Bravo. Bravo filed a third party complaint against EPIC, alleging EPIC improperly denied coverage, and sought a declaration. The relevant portion of the insurance policy was quoted, noting there was a specific exclusion for intentional wrongs. Both parties cross-moved for summary judgment, with EPIC arguing it had no duty per the policy and Bravo contending the exclusion was invalid, ambiguous, or contrary to Bravo’s reasonable expectations.

The judge granted and denied, in part, EPIC’s motion for summary judgment and Bravo’s cross-motion for summary judgment. The trial court found EPIC did not have to provide coverage for the intentional wrong claims, but did have to for the negligence, gross negligence, or reckless conduct claims. Bravo appealed the portion granting summary judgment to EPIC based on the exclusion, and EPIC cross-appealed the portion requiring them to pay defense costs for the negligence, etc. claims.

On appeal, Bravo argued the trial court erred in finding the exclusion was unambiguous and, even if it was, it ran contrary to the public policy of the Workers’ Compensation Act. The Appellate Division rejected these arguments, noting the exclusion was clear and that the Workers’ Compensation Act was not inconsistent with an employer’s liability policy that excluded coverage for intentional wrongs. Bravo and EPIC settled the portion of EPIC’s cross-appeal and as such, it was rendered moot.
 

 

What’s Hot in Workers’ Comp, Vol. 27, No. 11, November 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.