March 5, 2008
BRYAN WILLIAMS AND MERNA WILLIAMS, HIS WIFE, PLAINTIFFS-APPELLANTS,
PARKWAY MOTORS OF LEONIA, INC., DEFENDANT-RESPONDENT, AND THE INTERNATIONAL ASSOC. OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, AUTOMOBILE LODGE #447, DEFENDANT.
BRYAN WILLIAMS, APPELLANT,
PARKWAY MOTORS OF LEONIA, INC., RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1581-04 (A-0928-06T3); Department of Labor and Workforce Development, Case No. 2006-19596 (A-5274-06T3).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 5, 2008
Before Judges Fuentes, Grall and Chambers.
Bryan Williams appeals from a judgment of the Division of Workers' Compensation (Division) dismissing his petition for compensation for an occupational disease he contracted while employed by Parkway Motors of Leonia, Inc. (Parkway). He and his wife, Myrna Williams, appeal from a judgment of the Law Division dismissing their common-law claims against Parkway and a motion for reconsideration of that final order.*fn1 We consolidate the appeals, affirm the Law Division's grant of summary judgment in favor of Parkway, modify the order of dismissal and transfer Mr. Williams' claim to the Division. The transfer moots Mr. Williams' appeal from the judgment dismissing his petition for workers' compensation.
Except in cases where an employee can establish that a workplace injury or illness is a result of the employer's "intentional wrong," workers' compensation is the employee's exclusive means of recovering damages for such harm from the employer. N.J.S.A. 34:15-8; Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602, 605-06 (2002). The question on this appeal is whether the evidence of Parkway's conduct under the circumstances was adequate to establish an "intentional wrong." See id. at 622-23; see also Crippen v. Central Jersey Concrete Pipe Co., 176 N.J. 397, 405-11 (2003).
An employer's conduct qualifies as an "intentional wrong" within the meaning of N.J.S.A. 34:15-8 if: "(1) the employer [knows] that his actions are substantially certain to result in injury or death to the employee"; and "(2) the resulting injury [and the circumstances of its occurrence are] (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended" to address within the limits of the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142. Laidlow, supra, 170 N.J. at 617 (explaining Millison v. E.I. Du Pont de Nemours & Co., 101 N.J. 161, 179 (1985)); see Crippen, supra, 176 N.J. at 409-11. Our courts refer to the first prong of the test as the "conduct" or "substantial certainty" prong and to the second prong as the "context" prong. See Crippen, supra, 176 N.J. at 406-07; Laidlow, supra, 170 N.J. at 614-15; cf. Crippen, supra, 176 N.J. at 413 (Zazzali, J., concurring) (recommending abandonment of the "context prong" of this test).
On an employer's motion for summary judgment based on the absence of "intentional wrong," the trial court must first determine whether a jury could conclude that the "substantial certainty" prong is established. That determination requires the court to consider whether the evidence, viewed in the light most favorable to the employee, is adequate to permit the jury to find that the "employer acted with knowledge that it was substantially certain that a worker would suffer injury." Laidlow, supra, 170 N.J. at 623. If the plaintiff's evidence on the "substantial certainty" prong is inadequate, the court need not address the "context prong." See ibid. This court applies the same standards on appeal. See Fisher v. Sears, Roebuck & Co., 363 N.J. Super. 457, 461-62 (App. Div.), certif. denied, 179 N.J. 310 (2003).
On the motion for summary judgment, Parkway did not dispute the injury Mr. Williams alleged -- occupational disease from exposure to toxins. Mr. Williams has been diagnosed with toxic encephalopathy, a cluster of symptoms -- such as dizziness, behavioral mood changes, respiratory distress, cognitive deficits and impact on the nervous system -- attributable to exposure to toxins. He left his job with Parkway in June 2003.
Mr. Williams started working in Parkway's auto body shop in 1997. He was a welder but also did some grinding, sanding, priming and painting. The body shop was equipped with a "spray booth," but priming and painting was also done outside the booth. In 2000, Mr. Williams noticed that when he was working in the shop, he became dizzy and felt as if his head were "puffing up." The symptoms diminished when he left the shop on break but returned when he reentered the shop.
In February 2001, Mr. Williams wrote a letter to his shop manager to report that the paint and primer were making him sick. On the day that letter was received, management called a meeting of all of the employees. According to Williams, he and his co-workers were told that "as of this minute now every car ha[s] to be primed and paint[ed] inside the spray booth. Everybody ha[s] to do it as of now. Anybody who refuse[s] to do it, [will] be sent home. Anybody that cause[s] painting or priming a car in the working are[a] as of now, they [are] going to be sent home for the rest of the day."
The ban on painting outside the spray booth was relaxed on the day it was issued. An employee complained that there was no space available in the spray booth to paint the inside of a car door. After directing Mr. Williams to go outside, the supervisor allowed the employee to do the job in a corner of the shop near the spray booth. According to Williams, for an unspecified period of time thereafter, Williams was asked to leave when others painted outside the spray booth. Subsequently, any painting done in areas other than the spray booth was completed either before Williams came to work, during his lunch breaks, or after he left work. Williams saw that cars ready for painting when he left work had been painted by the time that he returned. The placement and position of the cars, which Mr. Williams had marked with chalk before leaving, was the same when he left and when he returned. He could smell paint and sometimes see fumes or vapors in the air.
Mr. Williams produced photographs of several cars that were painted in areas of the shop outside the spray booth -- a Toyota 4 Runner in January 2002 and a Honda Civic in spring 2002. The Honda Civic was painted while Mr. Williams was in the body shop working on another car. The Toyota was painted while he was out of the shop on lunch break. He also had a photograph of the radiator of a car that he painted in the shop.*fn2
Parkway gave Mr. Williams and his co-workers respirators to wear in the shop. Mr. Williams did not recall whether he had been given the respirator before or after he wrote his letter of complaint in February 2001. The filters for the respirators were kept in a closet that was accessible to all of the employees; they were not charged for the filters they used.
Although Mr. Williams could not smell the paint when he wore his respirator, there were times when Mr. Williams could not wear his respirator. It interfered with his use of the other protective gear that he wore while welding and grinding. Mr. Williams used his own protective gear for welding and grinding, because he was not satisfied that the gear provided by Parkway was adequate. He acknowledged that the gear Parkway provided for welding could be used with a respirator. He said that the protective glasses that Parkway provided for grinding could not be used while wearing a respirator.
Mr. Williams wore a beard throughout his employment with Parkway. No one ever told him that he could not use the respirator with a beard.
In August 2001, after vomiting and experiencing dizziness for a week that did not abate when he left the shop, Mr. Williams sought treatment in the emergency room of a local hospital. He did not tell his employer about that episode.
Mr. Williams subsequently contacted the Occupational Safety and Health Administration (OSHA). Between December 21, 2001, and March 7, 2002, OSHA inspected Parkway's body shop. Upon completion of the inspections in March 2002, Parkway was cited for the following "serious" violations: failure to establish and maintain a respiratory protection program in compliance with OSHA standards; absence of a manometer; and inoperable gauges and alarms in the spray booth.*fn3 Pursuant to 29 U.S.C.A. § 666(k) "a serious violation [exists] if there is a substantial probability that death or serious physical harm could result from a condition . . . , unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."*fn4 Thus, a citation for a serious violation gives notice that the condition cited poses a "substantial probability that death or serious physical harm could result from [that] condition." Ibid.
Plaintiffs' expert acknowledged that by the time OSHA conducted an unannounced re-inspection, Parkway had cured the problems with the manometer, gauges and alarms. In his view, Parkway made only unsuccessful and incomplete efforts to comply with OSHA's requirements for a respiratory protection program. The expert explained that, contrary to OSHA standards, Parkway continued to allow Mr. Williams to wear a respirator without shaving his beard. He also noted that when OSHA re-inspected Parkway's body shop, it found that one employee's respirator had not been "fit" tested within the required time-frame. The record does not disclose that this violation was cited as "serious." The expert explained that OSHA requires respirators for all in the vicinity when painting is done outside of a spray booth.
In the opinion of plaintiffs' expert, Parkway's conduct was egregious. Parkway "should not have had to have been notified by the employee nor by OSHA that there was a hazard and a risk that needed remediating. It should have been clear for many, many, many years." He also noted that the painting done in 2002 outside the spray booth "continue[d] beyond when it should have continued." He mentioned Mr. Williams' beard.
Based on the foregoing evidence, which is stated in the light most favorable to plaintiffs, the grant of summary judgment in favor of Parkway was proper. The evidence and reasonable inferences would not permit reasonable jurors to find an "intentional wrong."
Plaintiffs are required to show that Parkway acted or failed to act knowing that an occupational disease was a "substantially certain" consequence. Laidlow, supra, 170 N.J. at 613, 617-18. Direct evidence of the employer's desire to harm is not required; a finding that the employer knew its practices were substantial certain to injure an employee may be based on "all of the facts and circumstances of the case." Id. at 614. There are no bright line rules. Proof of accidents or near accidents in the past is relevant but not determinative. Id. at 621. Similarly, disengagement of safety devices, deliberate failure to cure a "serious" OSHA violation and evidence that the employer deceived employees or OSHA are relevant but not determinative. Crippen, supra, 176 N.J. at 410; Mull v. Zeta Consumer Prods., 176 N.J. 385, 391 (2003); cf. id. at 396-97 (Albin, J. concurring) (noting that the Court should "adopt a clear and precise rule that an employer's willful and knowing disengagement or removal of a safety device, the purpose of which is to protect an employee from death or serious bodily injury, constitutes an intentional wrong" but excluding "[t]emporary removal or disengagement of a safety device for repair, maintenance, or some other benign purpose").
A jury considering the circumstances of this case in the light most favorable to plaintiffs could not conclude reasonably that Parkway, at any point, knew that the practices in its workplace were substantially certain to result in the injury or death of one of its employees. Mr. Williams' complaint of illness was the first complaint. In response to that complaint, Parkway took immediate action. Thereafter, with few exceptions, when painting was done outside the spray booth, he was not present, and the other employees had respirators which they could wear. After Parkway took this corrective action, Mr. Williams did not renew his complaint about sickness, inform his employer about his visit to the emergency room or bring additional incidents of painting in the shop to Parkway's attention. Aside from Mr. Williams' beard, the plaintiffs' expert did not find the respirators inadequate. He did not provide information about the length of time necessary to clear toxic fumes or vapors from the shop after painting. In short, there is nothing to support a finding that Parkway had reason to even suspect that occupational disease was a "substantial certainty" given its practices after Mr. Williams complained.
The evidence does not permit an inference of Parkway's knowledge of substantially certain harm based upon acts of concealment. Any inference that Parkway attempted to hide relevant information from Mr. Williams would be unreasonable. Painting done outside the spray booth was not hidden. Mr. Williams knew about that painting either because he was asked to leave while the work was in progress or because the work was done in his absence without even moving the cars. Nothing was hidden.
When OSHA issued citations for "serious" violations, Parkway took action to abate. Problems with the instruments and alarm in the spray booth were fixed. A respiratory protection program was implemented. While Parkway's implementation of the respiratory protection program was not perfect, plaintiffs' expert pointed to only two problems -- one employee's respirator was not "fit" tested in accordance with OSHA's schedule, and Mr. Williams' used his respirator while bearded. There is no evidence that OSHA mentioned Mr. Williams' beard to Parkway, and no evidence that Parkway knew that occupational disease was a substantially certain consequence of Mr. Williams' use of a respirator while bearded. Thus, there simply is no evidence that Parkway deliberately failed to cure "serious" OSHA violations.
Similarly, there is no evidence that Parkway misled or deceived OSHA. Indeed, the only reasonable inference from this record is that OSHA learned that Parkway failed to timely "fit" test one employee's respirator by reviewing Parkway's records.
Plaintiffs argued that Parkway's continued tolerance of any painting outside the spray booth is equivalent to removal of a safety device. The critical inquiry, however, is what an employer knows about the risk of harm posed by disengagement or non-use of safety devices; removal of a safety device is not, in itself, sufficient to establish an "intentional wrong." In Mull, supra, 176 N.J. at 392 (focusing on evidence relevant to knowledge of the danger posed by disengagement of the device, including a prior accident, an employee's expression of concern about safety and prior violations charged by OSHA). Here, there was no evidence that Parkway had any reason to believe, let alone reason to be certain, that the practices it implemented in response to Mr. Williams' complaint and the OSHA violations did not effectively reduce the risk of occupational illness.
Because there is no evidence that would permit a jury to conclude that Parkway took action or failed to act with knowledge that its practices were substantially certain to result in harm to one of its employees, we affirm the grant of summary judgment.
It was error, however, to dismiss plaintiffs' action. The claim should have been transferred to the Division. R. 1:13-4(a); Doe v. St. Michael's Medical Ctr. of Newark, 184 N.J. Super. 1, 9 (App. Div. 1981); Townsend v. Great Adventure, 178 N.J. Super. 508, 517-18 (App. Div. 1981). Although the issue of transfer was not raised below, a court should transfer a case of this sort to the Division on its own motion. See Townsend, supra, 178 N.J. Super. at 517-18. This is not a case in which it was clear that plaintiffs filed this complaint in the Law Division after the time for Mr. Williams to file a complaint in the Division had expired. Cf. Glynn v. Park Tower Apartments Inc., 213 N.J. Super. 357, 364 (App. Div. 1986) (concluding that transfer would be improper where the complaint that was filed in the Law Division was filed after the time within which the Rent Control Board could have accepted the complaint). Accordingly, we modify the order of dismissal and transfer the case.
Our decision to transfer Mr. Williams' claim obviates any need for discussion of plaintiffs' argument on "equitable tolling" and moots Mr. Williams' appeal from the Division's dismissal of his petition.
Affirmed in part; modified in part and transferred to the Division.