Kiara K. Hartwell

1.    Proposed bills to protect workers from heat-related illnesses and injuries

A-5022, a bill which establishes “Occupational Heat-Related Illness and Injury Prevention Program” and occupational heat stress standard in Department of Labor and Workforce Development, was first introduced and referred to the Assembly Labor Committee on November 14, 2024. On February 20, 2025, it was reported out with amendments and referred to the Assembly Appropriations Committee. In the absence of a heat stress standard by the Occupational Safety and Health Administration (OSHA), New Jersey is seeking to adopt one for the protection of workers against heat-related illnesses. The bill would require the Commissioner of the Department of Labor and Workforce Development to establish a heat stress standard by June 1, 2025. The standard would establish heat stress levels for employees that, if exceeded, trigger actions by employers to protect the employees from heat-related illness and require each employer to make and enforce a prevention plan. 

 

2.    The Appellate Division affirmed dismissal of workers’ compensation claims for failure to meet burden of proof
Makins v. Palace Rehab & Care Ctr. and Premier Cadbury, LLC, No. A-2263-23 & A-2276-23 (April 24, 2025)

The petitioner worked as a license certified nursing assistant (CNA) at Palace from 2008 to 2016. She began working for Cadbury in 2015, initially working shifts for both employers. She resigned from Palace in 2016 and worked for Cadbury full-time until she was terminated in June 2018. While working for Palace on June 5, 2013, she filed a workers’ compensation claim for a low back injury sustained while helping a patient out of bed, for which she received an award. In June 2018, the petitioner re-opened her case and, shortly thereafter, filed two additional claims against Cadbury. One was for an alleged incident on February 11, 2018, that aggravated her low back injury. The other occurred on June 8, 2018; alleging while picking up a resident, she injured her left hip, left knee and low back. Cadbury denied the claims. After the petitioner and Cadbury’s witnesses testified, the judge issued an order and written decision dismissing the claims against Cadbury, noting inconsistencies in the petitioner’s testimony and documents in evidence. The petitioner and Palace appealed. The Appellate Division affirmed, noting they found no abuse of discretion or plain error on the bifurcation decision and no confusion between legal and medical causation. 

 

3.    The Appellate Division affirmed summary judgment dismissal of negligence claims under the Workers’ Compensation Act
Jameel, etc. v. Dember, et al., No. A-1225-23 (April 28, 2025)

This negligence action against the defendants, Bayshore Community Medical Center (HMH) and Jennifer Dember, arose under the wrongful death and survivorship statues. On October 6, 2021, as the decedent was walking to work at HMH, Dember struck and killed her in the hospital’s employee parking lot. HMH noted it was paying dependency benefits to the decedent’s spouse. Taking into account the New Jersey Workers’ Compensation Act and its “intentional wrong” exception, the trial court granted summary judgment dismissal to HMH based on the Act and a lack of evidence of any intentional acts. The court also granted summary judgment dismissal to Dember under the Act’s co-employee immunity provision, noting that both Dember and the decedent were acting in the course of employment when the accident occurred. The plaintiff appealed. The Appellate Division concluded HMH’s decision to direct Dember and the decedent to use a lot with less safety protections did not constitute an intentional wrong. The Appellate Division also rejected the plaintiff’s arguments that the trial court erred in dismissing its claim against HMH as well as for punitive damages. With regard to Dember, the Appellate Division found the car accident arose in the course of employment, noting that the trial court’s dismissal under the Act’s co-employee bar was appropriate. 

 

4.    The Appellate Division affirms workers’ compensation judge’s decision on course and scope and dual employment issues
Vola v. City of Northfield and Vola v. Asplundh Tree Expert, No. A-1627-23 (May 14, 2025)

The petitioner was employed with Northfield Police Department and filed a workers’ compensation claim against the City of Northfield and subsequently against Asplundh Tree Expert for the March 31, 2021, accident. On that day, the petitioner reported for a volunteer extra traffic duty assignment and checked out a police car to meet the Asplundh trucks. He was struck by another car as he attempted to follow the Asplundh trucks. Asplundh denied joint employment and filed a motion to dismiss, which Northfield opposed. The judge noted that Asplundh was required to pay the petitioner and hold Northfield harmless as well as to add them to its certificate of insurance. He found this assignment began the moment the petitioner pulled out of the police building with his police car and both Northfield and Asplundh were responsible. He indicated Asplundh was a “joint special employer” and ordered them to reimburse Northfield. Asplundh appealed, arguing the judge erred in finding that it was a “joint special employer” as there was no contract, the petitioner was not paid wages by Asplundh, the assignment was made by Northfield and the petitioner did not interact with Asplundh employees. The Appellate Division rejected this contention, but it first addressed the “special mission doctrine” as raised by Northfield. The Appellate Division agreed that the petitioner was in the course and scope of his employment the moment he left the police headquarters, confirming his injuries were compensable under this doctrine. As for the joint employer argument, the Appellate Division relied on the judge’s decision, which was supported by sufficient, credible evidence that the petitioner was a dual employee. The Appellate Division ultimately affirmed the judge’s order.

 

5.    The Appellate Division affirmed a trial judge’s order dismissing claims in reviewing the intentional wrongdoing doctrine
Bunting v. Emil A. Schroth, Inc., et al., No. A-1972-23 (May 16, 2025)

The petitioner injured his foot while working for Emil A. Schroth, Inc. He was paid workers’ compensation benefits under Schroth’s carrier, New Jersey Manufacturers Insurance Company (NJM). Bunting filed a personal injury lawsuit against Schroth, alleging gross negligence and intentional wrongdoing. Bunting and Schroth entered into a consent judgment for $1.250 million, and Schroth assigned its rights to Bunting to pursue insurance coverage from the insurers—NJM, Great Northern Insurance Company and Chubb Insurance Company of New Jersey. The insurers denied defense and indemnity coverage for this accident and filed separate Rule 4:6-2(e) motions to dismiss the complaint with prejudice for failure to state a claim, arguing the policy exclusions and noting lack of coverage for intentional bodily injury applied. Bunting opposed and cross-moved for partial summary judgment. The motion judge issued an order granting the motions to dismiss and denying Bunting’s cross-motion for summary judgment. He rejected Bunting’s contention that the exclusion violated public policy and that the plain language excluded all intentional wrongs. Bunting appealed. The Appellate Division affirmed the order dismissing Bunting’s claims for coverage from the insurers. They confirmed the insurers are not obligated to provide defense nor indemnity coverage due to the exclusion due to Bunting’s allegation that Schroth’s intentional wrongdoing caused his injury.

 

6.    The Appellate Division affirmed summary judgment granted to defendants due to lack of intentional wrong and lack of Affidavits of Merit
Estate of Mike Alexander, Deceased, et al. v. Northeast Sweepers, et al., No. A-1486-23 (June 19, 2025)

The plaintiffs appealed three orders granting summary judgment to Crisdel Group, Inc.; HAKS Engineers, Architects and Land surveyors, P.C.; and Johnson, Mirmiran & Thompson, Inc. (JMT) By way of background, Mr. Alexander was struck and killed by a sweeper truck while working in an active construction zone on the New Jersey Turnpike. Crisdel was the plaintiff’s employer and was hired as the general contractor. HAKS was retained by the New Jersey Transportation Authority to provide “professional services” for the resurfacing project, including supervision to ensure compliance. In October 2014, the plaintiffs filed a complaint; in January 2016, they amended to add claims against HAKS and JMT. In the amended complaint, they alleged intentional wrongs, noting that HAKS and JMT were responsible for supervision and had negligently supervised the project. Alexander and his estate received workers’ compensation benefits. After oral arguments, the trial court issued orders dismissing the claims, noting the negligence was in their professional capacities as engineers; therefore, Affidavits of Merit were needed. 

Following a denial of the motion for reconsideration in September 2017 and after the Appellate Division granted leave to appeal, the orders dismissing the claims against HAKS and JMT were reversed for a more complete record on whether the claims necessitated the Affidavit of Merit requirement. On remand, Crisdel moved for summary judgment. After oral arguments, the trial court granted summary judgment because the plaintiffs failed to produce evidence that Crisdel committed an intentional wrong or that this type of accident occurred in constructions areas. 

HAKS and JMT moved for summary judgment, arguing the plaintiffs’ claims involved professional engineering service malpractice claims. The trial court agreed and granted summary judgment, noting the expert reports and deposition testimony revealed the duties of HAKS and JMT were within the practice of engineering. As such, the plaintiffs needed to submit an Affidavit of Merit and their failure to do so required dismissal of their claims. 

The Appellate Division reviewed under the de novo standard and delved into the Workers’ Compensation Act and case law regarding intentional wrongs. The Appellate Division found no evidence of an intentional wrong within the meaning of the Act. As such, the Appellate Division affirmed the grant of summary judgment to Crisdel. In addition, as the undisputed evidence showed HAKS and JMT were providing professional engineering services and the plaintiffs failed to timely serve Affidavits of Merit, the Appellate Division affirmed the grant of summary judgment to HAKS and JMT.

 

7.    The Appellate Division reviewed the statute of limitations issues in a third-party case involving the employer
Weiss v. Borough of Franklin Lakes, et al., No. A-3831-22 (July 31, 2025)

The plaintiff was employed by Altona Blower & Sheet Metal Works and was tasked with designing, constructing and installing a firefighter training simulator purchased by the Borough of Franklin Lakes. During installation, the simulator fell from about 8.5 feet, striking the plaintiff in the head and torso. He was flown by helicopter to a trauma center. The plaintiff filed suit against the Borough, the Fire Department of Franklin Lakes and a division of Borough government (municipal defendants). The municipal defendants then filed a third-party complaint against Altona. After the court granted his motion to file an amended complaint, the plaintiff added Altona as a defendant. Altona moved for summary judgment due to the two-year statute of limitations. The court granted Altona’s motion, noting the plaintiff waited nearly three years after the accident to move for leave to amend the complaint and that he was well aware he could file against Altona as his employer. The municipal defendants also filed a motion for summary judgment, which the court granted, noting they were immune under the Tort Claims Act. The plaintiff moved for reconsideration, which the court denied. The plaintiff appealed, but the Appellate Division found the court did not deny the plaintiff his procedural due process during the Altona motion hearing based on the transcript. Also, the plaintiff should have been well aware of his claim against Altona, but he failed to file within the statute of limitations time period. The Appellate Division also found no basis to reverse the orders against the municipal defendants or the plaintiff in his reconsideration motion.

 

8.    The Appellate Division examined a disability finding by workers’ compensation judge
Brooks v. Rutgers, the State Univ. of N.J., No. A-1013-23 (August 7, 2025)

The petitioner worked for Rutgers as a custodian between 2000 and 2013, before he was terminated for being physically unable to perform his duties. The petitioner filed a workers’ compensation claim, alleging various injuries due to occupational exposure. While the parties resolved the pulmonary aspect of the claim, the petitioner filed a Verified Petition against the Second Injury Fund. While he admitted to prior health issues, he testified that his conditions worsened after working at Rutgers. He received injections to his low back and eventually underwent right knee replacement. The  petitioner did not wish to give up his job at Rutgers, but a disability retirement was suggested and eventually was sent a letter of termination. He then applied for disability retirement pension and Social Security Disability, receiving both after being found totally disabled. The workers’ compensation judge issued a written decision, noting the petitioner to be very credible and relying on the doctors’ testimonies to find his job aggravated the petitioner’s pre-existing conditions. The judge found 74% disability, apportioning for the bilateral hands, bilateral legs and lumbar spine, with a credit for pre-existing injuries to all except the left leg. The judge also dismissed the claim against the Second Injury Fund. Rutgers appealed, arguing the judge erred in finding causal relationship. The petitioner cross-appealed, arguing the judge erred in not finding him 100% disabled. The Appellate Division deferred to the judge’s determination of the degree of the petitioner’s disability and affirmed the order.

 

9.    The Appellate Division affirmed decision to direct respondent to provide authorized treatment
Peralta v. Silver Line Bldg. Prods., No. A-0370-24 (September 24, 2025)

On July 16, 2020, the petitioner was injured lifting glass while working for the respondent. He was referred by his primary care doctor to a specialist, who performed two emergent cervical spine surgeries. As such, the respondent denied compensability. A motion for medical and temporary benefits was filed, and the workers’ compensation judge found the first surgery in October 2020 (C5-6 anterior decompression and fusion) was compensable, but not the second in April 2021 (C2-T1 posterior fusion). The October 2023 decision directed the respondent to authorize the petitioner to return to his doctor, provide all recommended treatment, pay for the first surgery and provide temporary disability benefits. The doctor then recommended a third surgery (C7-T1 anterior discectomy and fusion). The respondent opposed, noting the second surgery was not compensable. The petitioner moved to enforce, and a trial was held before a second judge, who found the respondent should provide the third surgery. The respondent appealed. After reviewing the standard of review, the Appellate Division affirmed substantially for the reasons in the September 24, 2024, decision. A comment was added to address the res judicata and collateral estoppel arguments, noting they did not apply because the issue in the second trial was not the same as the one decided before. 

 

10.    A5792/S4590 signed into law

On August 21, 2025, Governor Murphy signed A5792/S4590 into law. This provides for workers’ compensation coverage of certain counseling services for first responders and provides that certain mental health related communications are confidential.  

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_{What’s Hot in Workers’ Comp, Vol. 29, No. 12, December 2025 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.}