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In several landmark cases the New Jersey Supreme Court 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. 

The New Jersey Supreme Court, in a landmark decision that was a year in the making, has taken a big step toward dismantling the exclusivity doctrine of the Workers’ Compensation Act, which immunizes employers from tort liability. The 3-2 decision last Wednesday came in the case of a laborer for a nonunion shop who died when he was run over by a dump truck driven by a worker from a union shop owned by the same principals. The justices said the laborer’s widow can sue the shop that loaned the truck driver even though he is immunized from suit. 

Witness Credibility

During the 1993-1994 court term, the attention of the New Jersey Supreme Court was on evidential issues while the Appellate Division addressed an entire spectrum of issues arising before the Division of Workers' Compensation. Those issues included conflict of law questions, further definition of the coming and going rule, and apportionment of traumatic and occupational disease claims [as well as issues of credibility. The court also addressed such perennially important issues as dependency benefits, the "fellow servant" rule, casual employment, and psychiatric illness]. The court term marked further reiteration by the reviewing tribunals that permanent disability can be recognized at minimal levels and that a cause of action exists for an occupationally-induced cardiovascular condition.  

The 1992-93 court term produced a group of decisions which focused on some of the novel issues now being presented before the Division of Workers' Compensation. Judicial forums had an opportunity to review many aspects of the law including employment status, psychiatric disability, apportionment of disability in traumatic disease claims among multiple respondents, [the "safety net", the "coming and going rule", liens, the scope of spousal dependency, evidential concerns,] and the scope of the availability of a pension offset for employees of interstate agencies. 

EFFECTS OF LONG-TERM OR REPEATED EXPOSURE: The substance may have effects on the liver, blood vessels and connective tissue. This substance is carcinogenic to humans. May cause heritable genetic damage in humans.  

 
The 1992-93 court term produced a group of decisions which focused on some of the novel issues now being presented before the Division of Workers' Compensation. Judicial forums had an opportunity to review many aspects of the law including employment status, psychiatric disability, apportionment of disability in traumatic disease claims among multiple respondents, [the "safety net", the "coming and going rule", liens, the scope of spousal dependency, evidential concerns,] and the scope of the availability of a pension offset for employees of interstate agencies. 

The workers' compensation system was established to provide an expeditious administrative program to provide benefits to the injured worker as a result of an industrial accident or occupational exposure. The benefits are to be awarded with a minimum of delay and regardless of fault. The system provides a direct remedy to the worker and limits litigation and exposure to the employer.

Families of Asbestos Workers Vulnerable

Studies linking asbestos to disease began in the early 1900's. Direct exposure to asbestos has been implicated in various diseases, principally mesothelioma, lung cancer, asbestosis, and lung scarring. The risks in all four diseases are closely influenced by dose and duration of asbestos exposure, and they involve long and variable latent periods after initial exposure (20-40 years). 

Quantity and quality marked the 1990-1991 Court term, with the entire spectrum of the Workers' Compensation Act, as well as the Rules of the New Jersey Division of Workers' Compensation, the subject of significant decisions. 

Asbestos Award Could Be Largest In U.S.

A federal jury in Newark has awarded $5.8 million in compensatory damages to a widow, and her two sons , whose husband died of asbestos-related lung cancer last year. 
Plaintiffs' co-counsel, John McConnell of Providence's Ness, Motley, Loadholt, Richardson & Poole, and Jon Gelman, a Wayne solo practitioner, say they believe the sum is the largest in a U.S. asbestos case in which punitive damages were not at issue. 

The jury that heard the case before U.S. District Judge H. Lee Sarokin returned its verdicts last Friday in favor of Ulrike Wundrack of West Milford and her sons. Their father, Robert, died in March 1989, at age 48. 

In its verdicts, the jury found the Keene Corp. of New York, an asbestos products distributor, 45 percent responsible for damages; Owens-Coming Fiberglas Corp. of Ohio, 35 percent liable; and the Manville Personal Injury Settlement Trust, 13 percent liable. 

McConnell says that because Owens settled for an undisclosed amount two weeks into the trial, and the jury was not aware of that, the actual amount of the verdict is the $3.37 million assessed against Keene and Manville. 

Keene's attorney, Nancv McDonald of Newark's McCarter & English, could not be reached for comment. 

McConnell says the plaintiffs agreed not to seek punitive damages in return for Keene's agreement not to challenge corporate successor liability claims. Keene did not actually manufacture asbestos. 

McConnell says that Keene and Manville did not contest the plaintiffs' diagnosis of asbestos-related rnesothelioma, a form of lung cancer, during trial. Rather, they sought to show that the asbestos fibers that led to Wundrack's condition originated from other manufacturers. 

Of the $5.8 million award, $4.6 million was to compensate Robert Wundrack's pain and suffering and his sons' loss of his counsel, McConnell says. 

David Vance of The Valore Firm in Linwood represented Manville. Owens was represented by Steven Ceiba of Milwaukee's Borgelt, Powell, Peterson & Frauen, and by Russell Pepe of Harwood Lloyd in Hackensack. 

This article is reprinted with permission from the November 15, 1990 issue of the New Jersey Law Journal. c. 1990 American Lawyer Media.

 

The 1989-1990 term provided the court with an opportunity to furnish judicial guidance in interpreting the statutory language of the 1979 Amendments to the Workers' Compensation Act and to expand the principles previously annunciated in prior case law decisions

CCR Class Action Decertified US District Issues Notice of Termination of the Tolling of the Statute of Limitations

In late June, 1998, U.S. District Court Judge Charles Wiener approved a revised notice for dissemination to 56 national and international unions to inform them that the Georgine class action had been decertified and the termination of the tolling of the applicable statute of limitations for individual actions had occured. 

The 1988-1989 court term has resulted in significant developments in the New Jersey Division of Workers' Compensation. The court has continued to define the scope of employment and the parameters under which remedies are available for the injured employee under the Workers' Compensation Act, and it confirmed the right of employees to obtain relief from employers where fraudulent concealment is an issue. 

 NJ Supreme Court Case Review 1988. Substantial and significant case law development and procedural changes have occurred before the Division of Workers' Compensation during the 1987-1988 court term. Decisions have focused upon the interpretation of the 1979 Amendments to the Workers' Compensation Act in light of the increasing complexities of the industrial arena.

The Apportionment of Disability in Workers' Compensation Claims

In an era of heightened technological sophistication, the Division of Workers' Compensation is increasingly faced with the necessity to apportion responsibility among successive employers or insurance carriers when dealing with occupational disease claims. 

Haledon Man Sues Asbestos Plant For Wife's Death Due to Mesothelioma

A Haledon man is suing his World War II employer for damages in connection with the death of his wife, claiming that she died from asbestos particles from his job. In what Jon Gelman, a Wayne lawyer, said was the first action of its kind, James D. Parker filed suit yesterday in Superior Court in Paterson, seeking damages from the Union Asbestos and Rubber Co. for the estate of his wife, Angelina, who died of cancer last year at age 61.  

Industrial Disease: The Quest for Recognition--The Need for Adequate Benefits

The concept of a compensable industrial disease has developed only recently and its acceptance has lagged far behind that of industrial accidents. The original Workers' Compensation Acts, as promulgated from the year 1911 forward by many of the states, did not provide for the recognition of occupational illness and disease as compensable events. As demands have been placed upon the medical system to treat and to prevent occupational illness, the legal system, under social, economic, and political pressure, has sought to provide a remedy for the thousands of injured workers who have suffered and who are continuing to suffer from occupational illness and disease. 

Cancer Risk Passes to Kin of Asbestos Workers

Unto the second generation, deadly asbestos fibers are now destroying the lungs of children of Paterson area asbestos workers of the 1940's, most of whom already have succumbed or are totally incapacitated from lung cancers and related diseases. 

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