January 29, 2019
certification to the Superior Court, Appellate Division.
W. Carbone, Assistant Corporation Counsel, argued the cause
for appellants (Peter J. Baker, Corporation Counsel,
attorney; Scott W. Carbone and Cheneise V. Wright, Assistant
Corporation Counsel, on the briefs).
F. Curley argued the cause for respondent (Brian F. Curley,
on the briefs).
C. Sharpe argued the cause for amici curiae New Jersey
Municipal Excess Liability Joint Insurance Fund, New Jersey
State League of Municipalities, and New Jersey Institute of
Local Government Attorneys (Dorsey & Semrau, attorneys;
Fred C. Semrau, of counsel; and Susan C. Sharpe and Edward R.
Pasternak, on the brief).
L. Goldman argued the cause for amicus curiae New Jersey
Association for Justice (Goldman Davis, attorneys; Evan L.
Goldman, of counsel and on the brief; and Kristen Ragon, on
appeal, the Court considers the relationship between two
statutory schemes: the New Jersey Law Against Discrimination
(LAD), N.J.S.A. 10:5-1 to -49, and the New Jersey
Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to
-146. Specifically, the Court must determine whether a
plaintiff who pursues a workers' compensation claim under
the Act but fails to utilize its enforcement mechanisms may
make a claim for failure to accommodate under the LAD.
Relatedly, the Court must also consider whether medical
treatment qualifies as a reasonable accommodation under the
on duty as a detective for the Jersey City Police Department
(JCPD) in August 1999, plaintiff Frank Caraballo sustained
injuries during a motor vehicle accident. The injuries to his
knees were severe and became chronic. In August 2001,
Caraballo filed a workers' compensation claim related to
the 1999 accident. Over the next several years, physicians
evaluated Caraballo. Two city-appointed doctors agreed that
Caraballo would eventually need total knee replacements to
recover fully from his injuries; other doctors confirmed
Caraballo's need for knee replacement surgery.
August 2010, Caraballo submitted an application for
retirement. Around the same time, the Commander of the JCPD
Medical Bureau, Lieutenant John McLellan, determined that
Caraballo "had been unfit for duty for numerous
years." Although doctors had recommended total knee
replacement surgery, McLellan did not believe that Caraballo
was pursuing this option. According to McLellan, Caraballo
refused to see the doctor "who would be able to
determine unequivocally whether or not he could have the
February 2011, Chief of Police Thomas Comey learned that
Caraballo had not undergone knee replacement surgery.
Caraballo retired on March 1. Shortly thereafter, Risk
Management authorized an orthopedic surgeon to evaluate
Caraballo for bilateral knee replacement surgery. The surgeon
examined Caraballo and, according to the doctor's
records, Caraballo "was told to contact [the] office to
pick a date for surgery pending medical and cardiac
clearance." Caraballo never called the doctor's
office to schedule surgery.
March 4, 2013, more than six-and-a-half years after he
requested that the JCPD authorize knee replacement surgery,
Caraballo settled his workers' compensation claim.
Shortly thereafter, he filed a complaint against the JCPD
asserting a cause of action under the LAD. Specifically,
Caraballo alleged that the JCPD failed to authorize his knee
replacement surgery and, therefore, failed to reasonably
accommodate his disability.
trial court granted the JCPD's motion for summary
judgment. The court found that even if the knee surgery could
have qualified as a reasonable accommodation, the record
contained several medical evaluations showing that Caraballo
was unable to carry out the responsibilities of a police
officer with or without the surgery. The trial court also
found that Caraballo could not bring a viable LAD claim
because he failed to enforce his right to have knee surgery
in the workers' compensation court. Citing Flick v.
PMA Insurance Co., 394 N.J.Super. 605 (App. Div. 2007),
the court concluded that because Caraballo failed to make an
application to enforce his right to have knee surgery, he was
"precluded from using a denial of the [w]orkers'
[c]ompensation benefits as a basis for his LAD claim."
Appellate Division reversed. According to the panel, the
record contained numerous material factual disputes --
including why Caraballo retired without receiving knee
surgery -- that should have been presented to a jury. The
Appellate Division also concluded that Caraballo established
a prima facie failure-to-accommodate case under the LAD. The
panel reasoned that there was a material dispute as to
whether Caraballo would have been able to perform his job
with the accommodation -- total knee replacement surgery.
Court granted the JCPD's petition for certification. 233
N.J. 485 (2018).
Caraballo's failure to utilize the Act's
administrative remedies to obtain knee replacement surgery
precludes his failure-to-accommodate claim under the LAD. In
addition, Caraballo's total knee replacement surgery
cannot qualify as a reasonable accommodation under the LAD.
Subject to certain statutory exceptions, the Act provides the
exclusive remedy for an employee who sustains a work-related
injury to obtain relief from his employer. In Flick,
the Appellate Division concluded that employees must
"first pursue all avenues for relief" in the
workers' compensation court before seeking enforcement in
the Law Division. 394 N.J.Super. at 613. Because the
plaintiff "failed to exhaust administrative remedies
available to him before the judge of compensation," the
Appellate Division affirmed dismissal of the complaint.
Id. at 608. In doing so, however, the Flick
panel acknowledged the "plaintiff's contentions of
systemic failure" and commented that "any
prospective reform of [the Act's] enforcement measures
that may be needed" should come from the Legislature or
the Division of Workers' Compensation. Id. at
614. In the wake of Flick, the Legislature enacted
N.J.S.A. 34:15-28.2, which created a variety of enforcement
mechanisms for employees to combat failure to comply with an
order. The Court explored the enforcement tools made
available under N.J.S.A. 34:15-28.2 in Stancil v. ACE
USA, 211 N.J. 276 (2012), and declined the
plaintiff's invitation to "creat[e] a new cause of
action" against an employer's compensation carrier
directly, id. at 291. In short, under the Act, an
employee must exhaust administrative remedies available in
the workers' compensation court before seeking
enforcement in the Law Division. (pp. 10-12)
Here, Caraballo filed his workers' compensation claim in
2001, retired in 2011, and settled his claim with the JCPD in
2013. In the interim, he sought authorization for double knee
replacement surgery but never sought to enforce his right to
the surgery in the workers' compensation court.
Caraballo's failure to utilize the Act's
administrative remedies precludes his failure-to-accommodate
claim under the LAD. (p. 13)
Although Caraballo's failure to exhaust the
administrative remedies available to him resolves the matter,
the Court considers the question of first impression posed by
this case to offer guidance on a matter of considerable
public importance: whether the alleged failure to provide an
employee with knee surgery can serve as the basis for a
viable failure-to-accommodate claim. New Jersey courts
evaluate an employer's obligation to reasonably
accommodate an employee's disability under the LAD in
accordance with its federal counterpart, the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12101 to
12213. N.J.A.C. 13:13-2.5(b)(1) provides some specific
examples of reasonable accommodations under the LAD, which
are all designed to make certain changes in the work
environment or structuring of employees' time that will
allow disabled employees to remain at work without their
physical handicaps impeding their job performance. (pp.
ADA defines "reasonable accommodation" in 42 U.S.C.
§ 12111(9)(B), and regulations promulgated by the United
States Equal Employment Opportunity Commission (EEOC) further
define "reasonable accommodation" at 29 C.F.R.
§ 1630.2(o)(1)(ii). Like New Jersey's regulations,
those promulgated by the EEOC "make clear that . . . a
'reasonable accommodation' is generally 'any
change in the work environment or in the way things
are customarily done that enables an individual with a
disability to enjoy equal employment
opportunities.'" Desmond v. Yale-New Haven
Hosp., Inc., 738 F.Supp.2d 331, 350 (D. Conn. 2010)
(quoting 29 C.F.R. app. § 1630.2(o)). In
Desmond, the court concluded that neither the text
of the ADA nor its regulations "contemplate that an
employer should be required to provide a disabled employee
with medical treatment in order to restore her ability to
perform essential job functions." Id. at 350.
The district court's reasoning hews closely to the
language of the regulations and the EEOC's compliance
manual, and the balance struck by the district court in
Desmond fits neatly within the Court's LAD
jurisprudence. The medical procedure sought by Caraballo --
his double knee replacement surgery -- is neither a
modification to the work environment nor a removal of
workplace barriers. Rather, it is a means to treat or
mitigate the effects of his injuries, like the treatments at
issue in Desmond. Consistent with the LAD, the ADA,
and their regulations, Caraballo's total knee replacement
surgery cannot qualify as a reasonable accommodation under
the LAD. (pp. 16-19)
judgment of the Appellate Division is REVERSED, and the order
granting summary judgment is REINSTATED.
JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and
FERNANDEZ-VINA join in JUSTICE SOLOMON'S opinion.
JUSTICE TIMPONE did not participate.
appeal, we are called upon to consider the relationship
between two statutory schemes: the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the New
Jersey Workers' Compensation Act (Act), N.J.S.A. 34:15-1
to -146. Specifically, we must determine whether a plaintiff
who pursues a workers' compensation claim under the Act
but fails to utilize its enforcement mechanisms may make a
claim for failure to accommodate ...