Workers’ Compensation

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An employee is entitled to compensation for an accidental injury under the Workers’ Compensation Act (Act) if the injury arose out of and in the course of employment.

The definition of “employment” under the statute is multifaceted, and includes situations in which the employee is physically away from the employer’s premises but nevertheless is engaged in the direct performance of duties assigned or directed by the employer.

The Act is liberally construed in favor of employees because the Act is remedial social legislation. The Act is given a liberal construction in order to implement the legislative policy of affording coverage to as many workers as possible.

Workers’ Compensation has been described as an historic ‘trade-off.’ By implied agreement, employees volunteer to give up their right to pursue common-law remedies for work-related injuries and illnesses, in return for an automatic entitlement to a limited recovery. Similarly, the employer accepts strict liability for workplace injuries in return for limited and definite financial exposure. This system is effectuated through the exclusive remedy provision: If an injury or death is compensable, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.

Intentional Wrong

An intentional wrong is an exception to the workers’ compensation bar. The concept of ”intentional wrong” encompassed more than the mere knowledge and appreciation of a risk of harm to an employee. Rather, a plaintiff can show an intentional wrong by proving two elements, known as the “conduct” and “context” prongs, respectively. First, the employer must knowingly expose the employee to a substantial certainty of injury. Second, the resulting injury must not be a fact of life of industrial employment, and must be plainly beyond anything the Legislature intended the Act to immunize.

The finding of a willful violation under OSHA is not dispositive of the issue of whether the employer committed an intentional wrong. A probability, or knowledge that injury or death ‘could’ result, is insufficient. Instead, the intentional wrong must amount to a virtual certainty that bodily injury or death will result.

In addition to violations of safety regulations or failure to follow good safety practice, an intentional wrong must be accompanied by something more, typically deception, affirmative acts that defeat safety devices, or a willful failure to remedy past violations; the mere toleration of workplace hazards will come up short of substantial certainty. Absent such egregious conduct, the employee is limited to the workers’ compensation remedy.


To discuss your specific situation, please call me, Paul G. Kostro, Esq., to schedule an appointment: 908-232-6500 or

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