Bob is the managing attorney of the Workers' Compensation Department in the firm's Mount Laurel office. He devotes his entire practice to workers' compensation defense litigation, providing experienced counsel to employers and insurance carriers. Bob has represented employers in many industries, including retail services, hospitals and health care, banking, construction, manufacturing and distribution. Through his extensive litigation experience and educational offerings, Bob has helped clients achieve significant monetary savings and reduce their workers' compensation expenditures.
Bob works in tandem with his clients to develop risk management and litigation strategies that best suit their business needs and goals. He stays abreast of current trends, and frequently authors articles and conducts seminars on issues impacting workers’ compensation in New Jersey. Bob is a regular contributor to the firm’s quarterly newsletter, Defense Digest, and the New Jersey Defense Association publications, and is a frequent presenter for our monthly What’s Hot in Workers’ Comp Live webinar.
Bob is admitted to practice in New Jersey and Pennsylvania, as well as the U.S. District Courts for New Jersey and the Eastern District of Pennsylvania. He earned his juris doctor from Widener University School of Law, where he was a member of Phi Delta Phi, Honor Chapter. Bob is an active member of the New Jersey Self Insurers' Association, New Jersey Defense Association and New Jersey State Bar Association.
Results
Successfully Defended a Claim for Permanent/Total Disability Benefits Where the Potential Exposure Exceeded Half a Million Dollars
We successfully defended a claim for permanent/total disability benefits and significantly lowered our client’s exposure. Given the petitioner’s age and the exposure of the case, our client faced a potential indemnity exposure of more than $500,000. Prior to trial, the petitioner refused to accept any settlement offer below permanent/total disability benefits. Following the petitioner’s testimony at trial, the judge dismissed the claim for permanent/total disability benefits and recommended a partial disability settlement, which equated to approximately $57,000 (only 10% of the potential cost) in total exposure, which was accepted by the petitioner.
Medical provider claim petition dismissed, with prejudice.
The parties were litigating a motion for medical treatment in which a physician was recommending an additional spinal surgery. The physician moved forward without authorization and performed spinal surgery on the petitioner. In order to complete the surgery, the physician brought in several ancillary services, including a vendor to perform diagnostic monitoring during the surgery. Following the surgery, the medical provider submitted its bills to the carrier, which were rejected based upon the lack of authorization. After a medical provider claim petition was filed, the respondent filed a motion to dismiss the matter for failure to obtain the requisite statutory authorization. The medical provider argued that it was only providing ancillary services and, therefore, did not require the authorization of the carrier under the New Jersey Workers’ Compensation Statute. The medical provider also argued that they were the “victim” since they were advised by the physician that the procedure was authorized. The judge rejected both arguments, holding that all medical providers including providers that provide ancillary services for surgical procedures, are required to obtain the same authorization for their treatment, or risk not receiving financial reimbursement.
Thought Leadership
Defense Digest
Watch That First Step! New Jersey Again Addresses The Eternal Battle of Intentional injuries vs. The Exclusive Remedy Doctrine
March 1, 2026
Key Points: The exclusive remedy doctrine bars a petitioner from filing a personal injury suit arising out of a workplace injury. The exclusive remedy doctrine can be overcome if a petitioner can prove an “intentional injury.” A petitioner has a high burden of proof under a multi-part analysis to succeed on an intentional injury claim. The Appellate Division of the New Jersey Superior Court once again reaffirmed the strength of the exclusive remedy doctrine of the New Jersey Workers’ Compensation Statute against alleged intentional injury claims in Jonathan Little v VDM Metals USA, LLC, et al., 2025 WL 3276688 (NJ Super. App. Div. Nov. 25, 2025). In this case, the petitioner worked as a material handler for VDM, a steel manufacturer, when he sustained a compensable fall while exiting a trailer. The petitioner was clearing packing materials on a flat-rack trailer: an open trailer with only two sides – front and back. The petitioner sustained head injuries in the fall and was unable to describe the accident. The petitioner’s supervisor, Frendly Blas, provided some details leading up to the accident, although he did not witness the fall. Blas testified that, prior to the accident, the petitioner received safety training on fall prevention. Blas estimated the flat-rack trailer bed sat five or six feet off the ground. Further, a "RollaStep Mobile Platform," intended to protect workers from falls whenever they accessed a surface at least four feet off the ground, was near the truck, but not used at the time of the fall. Blas was responsible for ensuring the use of the RollaStep, but did not remember why it was not used during the incident. An OSHA report confirmed the RollaStep was positioned nearby the trailer. OSHA determined the primary cause of the accident was complacency, as it appeared the RollaStep was generally not used when there were only a few steel plates being unloaded. The petitioner’s expert report in the personal injury case indicated that training records did not show the petitioner received specific training on flat-rack trailers. The petitioner filed a personal injury action for negligence, gross negligence, and intentional wrongs against the employer, VDM. More specifically, the petitioner asserted VDM failed to provide adequate training, safety measures, and protective equipment, along with not providing enough staff to safely operate the facility. After discovery concluded, VDM won a motion for summary judgment. The trial court found that the plaintiff failed to establish that VDM’s conduct was an intentional act sufficient to surmount the Act's high bar, and dismissed the petitioner’s complaint. The court employed the two-part standard test in Laidlow v. Hariton Mach. Co., 790 A.2d 884, 894-896 (N.J. 2002): the court determined the petitioner had not established his injuries were substantially certain to occur or fell outside the "facts of life" attendant to industrial employment. On appeal, the petitioner argued the trial court erred in granting summary judgment, as he established sufficient facts to show the defendant's intentional conduct. The petitioner contended that the record contained facts sufficient to show that adequate training was not provided related to unloading the flat-rack trailer or protecting his safety by using the RollaStep safety measure. Thus, claiming the fall from an elevated surface could not be a fact of industrial life for someone that finished and packed material. The Appellate Division affirmed the dismissal, noting that the intentional wrong exception in Laidlow is interpreted very narrowly so that as many work-related injury claims as possible can be processed exclusively within the workers' compensation system. Thereunder, to successfully prove an intentional injury claim the petitioner must prove: that the employer knew that its actions are substantially certain to result in injury or death to the employee; and the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the legislature intended the Act to immunize. Laidlow, 790 A.2d at 894. Further, the petitioner bears the burden of establishing both the "conduct" and "context" prongs. To satisfy the conduct requirement, a petitioner must show a defendant acted with "substantial certainty” that injury or death would result. Again, mere knowledge and appreciation of a risk is insufficient. In this case, the court noted VDM failed to utilize the RollaStep during small unloading jobs, and that OSHA concluded that the defendant failed to provide the RollaStep due to "complacency." However, the court also noted there was no evidence to suggest any employees previously fell from a trailer while unloading it. Further, the petitioner was not unloading the truck, but exiting the trailer after the work was completed. Thus, even presuming his inexperience with “unloading," the petitioner was not handling or removing the metal sheets when the fall occurred. Additionally, the petitioner was trained to avoid falls, albeit not specifically to avoid falls from flat-rack trailers. Without evidence that VDM was aware of a known or heightened danger, any lack of training, even considered together with VDM’s failure to use a RollaStep, did not demonstrate that the defendant was substantially certain that harm would arise from its actions. Additionally, there was no evidence that the defendant deliberately and deceptively removed the safety device from the location. Even if VDM knew that the failure to use the RollaStep created some degree of danger, mere knowledge by an employer that a workplace is dangerous does not equate to an “intentional wrong." The court noted that it had rejected the idea that a longstanding negligent or reckless practice should be deemed an intentional wrong under the Act simply because the risk posed by an ongoing wrongful practice will eventually occur. While this case does not necessarily add anything new to the “intentional injury” test, it is a great reminder as to the court’s analysis of such claims. Again, a petitioner has a very high burden of proving both the “conduct” and “context” prongs under Supreme Court’s Laidlow decision. The purpose of the exclusive remedy doctrine is to keep work claims in the workers’ compensation forum, while only the most egregious cases dealing with poor employer conduct can pierce the bar. Regardless of this decision, employers and carriers should always take great strides in insuring workplace safety. If you have any questions about your workplace safety program and procedures, please reach out to your TPA carrier and counsel for advice before the next potential work injury. Robert Fitzgerald works in our Mount Laurel, NJ office. He can be reached at (856) 414-6009 or RJFitzgerald@mdwcg.com.
Defense Digest
New Jersey Appellate Division Continues to Turn Away Alleged Intentional Workplace Injury Claims
September 1, 2025
Key Points: New Jersey Appellate Division, once again, turns away intentional injury claim in an attempt to overcome the workers’ compensation bar. To prove an intentional wrong under the Workers’ Compensation Act, a plaintiff must show that: (1) the employer knows its actions are substantially certain to result in injury or death to the employee; and that (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize. The New Jersey Appellate Division has once again turned away an intentional injury claim in an attempt to overcome the workers’ compensation bar in Estate of Michael Alexander et al., v. Northeast Sweepers, et al., and Crisdel Construction, et al., 2025 WL 1711136 (N.J. App. Div. Jun 19, 2025). The case itself has an extensive record and a long procedural history, including two prior appeals, from a workplace injury going back to 2014. For purposes of this article, we have cited only the most relevant facts from the court’s analysis of the intentional injury issue. On July 11, 2014, Mike Alexander, an employee of Crisdel Construction, was struck by a sweeper truck owned by Northeast Sweepers and operated by a co-employee of Crisdell, Christopher Hackett. Alexander was taken to a hospital and passed away approximately one month later. Crisdel was the general contractor and was responsible for milling and paving operations. Alexander had served as a milling foreman on the resurfacing project. At the time of the accident, Alexander was wearing a reflective safety vest, hard hat, and a flashlight that had been turned on. The resurfacing work area consisted of two lanes of the New Jersey turnpike and the right shoulder. Crisdel had 12 pieces of machinery, including milling and paving equipment, two sweepers, and at least five dump trucks. The work area was illuminated by the lights from various vehicles and the moon, but there were no light towers. The sweeper trucks and milling machines had lights, which pointed several feet directly behind each vehicle. The sweeper trucks and milling machines also had backup alarms, but the milling and paving work generated a great deal of noise in the work area. Workers at the scene had not reviewed a written traffic control plan before the accident. The workers had gathered at the outset of the night to discuss where they would be operating and what they would be doing that night. There were no flag persons or spotters. Hackett had over 15,000 hours of experience in operating the sweeper, and Northeast considered him to be a “senior operator.” Before the accident, some workers, including Alexander, had discussed that Hackett was a “dangerous operator.” Approximately one week beforehand, Alexander had allegedly brought his concerns to the attention of the project manager. There were, however, no formal complaints regarding Hackett or his job performance. It was Crisdel’s practice to assign a dump truck to each sweeper truck for efficiency and safety reasons. At the time of the accident, however, no dump truck was near Hackett’s sweeper. The accident occurred when Hackett drove his sweeper around a milling machine and struck Alexander. At his deposition, Hackett testified: “I think it was my error. I missed [Alexander] in my line of sight. And I’m responsible for a human life.” OSHA conducted an investigation and determined that Crisdel had failed to “furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees,” and failed to “establish a pre-planned traffic pattern for pedestrian and construction traffic . . . to ensure the safety of the employees working and walking within the construction work zone.” The “type of violation” was noted as “serious,” but not “willful” or “repeated.” In an amended complaint brought in their civil action related to Alexander’s death, plaintiffs, Estate of Mike Alexander, deceased, by Lorraine Alexander as Executrix of the Estate, and Lorraine Alexander, individually, alleged that Crisdel had engaged in conduct that constituted intentional wrongs that resulted in Alexander’s death. Alexander and his estate had received workers’ compensation benefits related to the accident. In Crisdel’s answer, it asserted the affirmative defense that the plaintiffs’ claims were barred by the New Jersey Workers’ Compensation Act. Crisdel then moved for summary judgment to dismiss the plaintiffs’ claims against it. The trial court granted summary judgment in favor of Crisdel and found that the plaintiffs had failed to produce evidence that would allow a reasonable trier of fact to conclude that Crisdel had committed an intentional wrong. The trial court also reasoned that the accident which caused Alexander’s death was in the nature of the type of accidents that occur in construction areas. The plaintiffs then appealed the order granting summary judgment to Crisdel. The Appellate Court first noted that the Workers’ Compensation Act reflects a historic trade-off whereby employees relinquish their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffer injuries by accidents arising out of and in the course of employment. Rodriguez v. Shelbourne Spring, LLC, 327 A.3d 134, 140 (N.J. 2024) (quoting Millison v. E.I. Du Pont de Nemours & Co., 501 A.2d 505, 512 (N.J. 1985)). The only exception to the workers’ compensation bar is for injuries caused by intentional wrongs. Richter v. Oakland Bd. of Educ., 252 A.3d 161, 178-179 (N.J. 2021) (quoting Laidlow v. Hariton Mach. Co., 790 A.2d 884, 894 (N.J. 2002)). To prove an intentional wrong under the Workers’ Compensation Act, a plaintiff must show that: (1) the employer must know its actions are substantially certain to result in injury or death to the employee; and that (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers’ Compensation Act to immunize. Id. The court noted that the New Jersey Supreme Court has explained that “the ‘substantial certainty' test is still a high standard to meet: to avoid allowing employees to circumvent the Act, courts must demand a virtual certainty before employees can proceed under the intentional wrong exception to sue their employer in tort." Van Dunk v. Reckson Assocs. Realty Corp., 45 A.3d 965, 978 (N.J. 2012) (quoting Millison, 501 A.2d at 514). In this appeal, the plaintiffs identified six specific areas of safety protocols or devices that were allegedly known to and ignored by Crisdel on the night of the accident: (1) work lighting, (2) audible backup alarms, (3) properly functioning mirrors, (4) dedicated dump trucks, (5) the use of spotters, and (6) a written traffic control plan. The plaintiffs also argued that Crisdel ignored the complaints concerning Hackett’s dangerous operation of the sweeper and failed to learn from prior incidents. In their detailed analysis of each allegation, the court noted that none of the evidence pointed to by the plaintiffs constituted evidence of an intentional wrong within the meaning of the Act. The court also noted there were no formal complaints regarding Hackett’s job performance and that he was not previously involved in any accidents while operating a sweeper. Concerning the OSHA violations, the court noted that there were no prior OSHA citations at the New Jersey Turnpike job site and that the subsequent OSHA violation cited Crisdel for “serious” issues but not “willful” violations. Moreover, the New Jersey Supreme Court has explained that OSHA safety violations do not, on their own, establish the virtual certainty required to prove an intentional wrong. Van Dunk, 45 A.3d at 978. See also Laidlow, 790 A.2d at 898. This case illustrates the constant barrage of intentional injury claims being asserted against the workers’ compensation bar. In a construction scenario such as this, the two most common means of attack, lately, are whether the employer had safety training, programs, and/or protocols prior to a workplace accident, and whether there was a significant violation in any subsequent OSHA investigation. All employers are urged to routinely update their safety programs to make sure that they, at a minimum, meet the OSHA standards and, preferably, go beyond those standards. Further, employers should designate employee health and safety compliance as a top priority, not just for the personnel directly involved in the department, but for every employee in the organization, to prevent a workers’ compensation liability. Bob is a member of the Workers’ Compensation Department. He can be reached at (856) 414-6009 or RJFitzgerald@mdwcg.com. Defense Digest, Vol. 31, No. 3, September 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.
