On July 8, 2019, Governor Murphy signed the Thomas P. Canzanella Twenty First Century First Responders Protection Act. N.J.S.A. 34:15-31.2, et seq. This Act was introduced in response to the significant number of public safety workers who reported illness after responding to the terrorist attacks of September 11, 2001 and the terrorists’ use of Anthrax shortly thereafter. The Canzanella Act states:
“It is therefore an appropriate public policy to modernize the workers’ compensation system in this State to ensure the meeting of the critical needs of public safety workers who are New Jersey’s first line of defense in the event of catastrophic emergencies, epidemics and terrorist attacks, and assure that those workers are not denied a level of support which is commensurate to the sacrifices they and their families make for the safety and wellbeing of the citizens of this State and the nation.”
On May 4, 2020 New Jersey Senate President Stephen Sweeney introduced legislation (S-2380) that would add COVID-19 to the list of illnesses and injuries covered by the state’s workers’ compensation program and create a rebuttable presumption that any essential worker who contracts COVID-19 did so at work.
Essentially the bill would create a rebuttable presumption that an essential worker who contracts the COVID-19 virus got infected in the workplace. The intent of this presumption is to allow the employee to avail themselves of the workers compensation system.
If you are not an essential worker, you may still be able to file a workers’ compensation claim.
Contact me now to preserve your rights!
Some preliminary issues:
- Was there an employee-employer relationship?
- If an employee has been exposed to some risk that results in injury or death, does that risk fall within the Workers’ Compensation Act?
- Did the exposure arise out of and in the course of employment?
Compensable Occupational Claims
The initial act New Jersey Workers’ Compensation Act was passed in 1911. Initially the law did not provide coverage for occupational diseases until it was changed in 1924, when nine (9) specific diseases were acknowledged as being compensable if contracted through employment: anthrax, lead poisoning, mercury poisoning, arsenic poisoning, phosphorus poisoning, poisoning from all homologues and derivatives of benzene, wood alcohol poisoning, chrome poisoning, and caisson disease.
In 1949 the NJ workers compensation law was amended again, increasing coverage to compensate workers for other health problems that were caused or exacerbated as a result of their work or a work related injury or exposure.
The 1979 revision to the Act modified N.J.S.A. 34:15-31 in three ways:
First, it deleted the preexisting definition of “occupational disease” that included diseases “due to the exposure of any employee to a cause thereof arising out of and in the course of employment.” The purpose of this deletion was to ensure that employers would be liable solely for the diseases “characteristic of and peculiar to” a particular employment.
Second, the Legislature added subsection b, which restricts compensability by providing: “Deterioration of a tissue, organ or part of the body in which the function of such tissue, organ or part of the body is diminished due to the natural aging process there of is not compensable.”
Third, the Legislature redefined a “compensable occupational disease” both to restrict and broaden coverage. The new definition restricted coverage by requiring that the disease be due in a “material degree” to “causes or conditions … peculiar to the place of employment.” The amendment broadens coverage by adding the phrase, “peculiar to the place of employment.” This addition expands the definition of “compensable occupational disease” to include diseases due in a material degree to conditions characteristic of the place of employment.
The term “material degree” means “an appreciable degree or a degree substantially greater than de minimis” as “material degree” is defined in N.J.S.A. 34:15-7.2.
These changes require quality proofs to permit a finding of compensability.
An injured worker, the “petitioner” has the burden of proving by a preponderance of the evidence that his or her environmental exposure was a substantial contributing cause of the alleged occupational disease. A petitioner must prove legal causation (the injury is work-connected) and medical causation (the injury is a physical or emotional consequence of work exposure). It is sufficient to prove that the risk or danger in the work place was a contributing cause. Direct causation is not required. Activation, acceleration or exacerbation of disabling symptoms is sufficient. Expert testimony must only meet the standard set forth in Rubanick v. Witco Chem. Corp., 125 N.J. 421 Shepardize (1991) (i.e., a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately founded, scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field). Lindquist v. City of Jersey City Fire Dep’t., 175 N.J. 244 Shepardize (2003).