Tag Archives: New Jersey

Workplace perfume injury leads to workers comp award

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In an opinion that reminds me of my law-school torts class with its discussion of cringeworthy accidental injuries, the Superior Court of New Jersey, Appellate Division, decided the workers compensation appeal of a woman whose COPD was exacerbated by a fellow employee’s sprayed perfume.

The issue was whether the aggravation of the employee’s chronic obstructive pulmonary disease (COPD) arose out of her employment. The workers compensation judge thought not, so the employee appealed.


Five years ago, the employee was working as a nurse in a nursing home when she was exposed to three separate sprays of a perfume in one day. She experienced difficulty breathing after the second and third sprays.


Her breathing difficulties continued the next day, when her daughter took her to the hospital, where she was admitted to stay for 12 days. She was transferred to a rehabilitation center where she stayed for seven days and then to another hospital, where she was admitted and stayed for another seven days.

Ever since her hospital stays, the employee was dependent on oxygen. She was unable to return to work.

“Hair on fire” case comparison

In re-considering the workers compensation judge’s denial of benefits, the Appellate Division compared this case to that of Coleman v. Cycle Transformer Corp., 105 N. J. 285 (1986), in which an employee accidentally set her hair on fire while trying to light a cigarette during her lunch break. The New Jersey Supreme Court found that her injuries did not arise out of the course of her employment.

The Coleman court reasoned that the the nature of the risk to the employee of setting her hair on fire in that manner was personal to the employee and that the employment connection with the injury was minimal. There was no condition of her work or workplace that was a contributing cause of her injury.

Idiopathic (spontaneous) fall cases

As though the discussion of an employee’s setting her own hair on fire were not enough, the court moved on to a discussion of workplace injuries caused by spontaneous falls. An employee who burned his face when he fell into a pot stove during a seizure was awarded workers comp in 1944 because the stove was a condition of the workplace that contributed to his injury.

Likewise, an employee who fell because of a heart attack and hit his head on the floor, as a result of which he later died, was entitled to workers comp in 1965 because the injury he suffered was a risk of his employment – i.e., the impact with the floor, which was a condition of the workplace.

The smoking cases

Unable to leave well enough alone, the court reviewed the smoking cases, in which employees suffered smoking related injuries on the job. In a case from 1955, when an employee was injured after spilling gasoline on his clothing and then trying to light a cigarette, the injuries were compensable because they arose out of the course of his employment.

But in a 1952 case, an employee was denied workers comp when he suffered injuries from a match head that flew into his eye when he tried to light a cigarette while driving a truck during work. This particular risk of using matches or smoking was somehow unconnected to the employment. The different outcomes in these two smoking cases perplexes me.

The workers comp judge in the recent perfume case apparently thought it was more like the match-head cigarette case than the gasoline-spill cigarette case, due to the employee’s personal sensitivity to perfume. While I don’t like that outcome, I can’t blame the judge for being a bit confused about how these cases should be decided, considering the state of the past case law reviewed in this opinion (the match-head case in particular).

Perfume case, Appellate Division analysis

The Appellate Division reversed the workers comp judge, reasoning as follows: But for being at work that day, the employee would not have been injured by her co-worker’s perfume. The air she had to breathe, which was contaminated by the perfume, was a condition of (and a risk of) her employment. Since breathing the contaminated workplace air injured her, the injury arose out of her employment.

The court also pointed out that just because the employee had COPD did not mean that the subsequent aggravation of that COPD was not compensable. Employees may be entitled to compensation where the injury causing their total and permanent disability amounted to the aggravation of a pre-existing condition. In fact, the Second Injury Fund allows employers a credit under these circumstances.

Sexton v. County of Cumberland/Cumberland Manor, Docket No. A-6414-06T1 (Sup Ct NJ, App Div 2009).

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New Jersey extends unemployment benefits a second time since July 2008

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According to a press release dated 11/24/08, the New Jersey Department of Labor and Workforce Development is notifying unemployed workers of an unemployment benefits extension for workers whose benefits run out without having found a job.

The State of New Jersey is mailing letters to about 65,000 people, notifying them of this extension in unemployment benefits. Funding for the extension comes from the federal Unemployment Compensation Extension Act of 2008 enacted on November 21. This is the second federally-funded extension of unemployment benefits since July 2008.

Up to seven additional weeks of benefits are available under the new federal law, beginning 11/23/08. The benefits will not be retroactive.

People who are currently on unemployment should automatically qualify for extended benefits without having to file a separate application. Those whose benefits have already run out and who may be eligible for the extended benefits should receive instructions from the Department of Labor and Workforce Development on how to claim the extended benefits.

The current unemployment rate in New Jersey is 6.0 percent, which is below the national 6.5 percent rate, according to the Department’s press release.

You can find the press release here:  Notice of Additional Extended Unemployment Benefits Announced

Update: For information on your own unemployment claim or for general questions about unemployment, there is a list of phone numbers on the NJ Department of Labor and Workforce Development website. Check it out.

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Recent case illustrates proper analysis under New Jersey Law Against Discrimination

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This week, the Superior Court of New Jersey, Appellate Division, decided a case involving a claim under the New Jersey Law Against Discrimination (NJLAD) and outlined the burdens of proof necessary to make a proper case under the NJLAD.

Factual background

According to the decision, the employee worked for her employer for about 24 years, until her employment was terminated. She had supervisory responsibility over the production of commercial print advertisements.

Her performance was satisfactory until 2003, when she received 2 written warnings for her failure to complete certain printing jobs, for mailing a package to the wrong location, and for working the wrong job for 2 shifts.

In September of 2003, the employee met with her department and human resources managers about her performance problems. A memo from the employee’s file summarizing the discussion reflected several complaints about her job performance. Her department manager told her to improve her performance in the areas they discussed and stated that her failure to improve could result in termination of her employment.

In October 2003, the employee supervised a project that was sent to press without having been completed, costing the employer over $200,000 to re-run the project. The following month, her employer fired her, stating in a written notice that her poor performance was the reason for the termination.

Two years later, the employee sued her former employer under the NJLAD, claiming gender and sexual orientation discrimination and breach of contract. Losing at the lower court level, she filed this appeal.

Framework for analysis

The appellate court determined that the employee’s claims had no merit. The court outlined the proper framework for analyzing NJLAD claims: 1) The plaintiff must present enough evidence to establish a prima facie case of illegal discrimination; 2) The defendant must present evidence to establish a legitimate, non-discriminatory reason for the adverse employment action; 3) If #2 is established, the plaintiff must prove that the defendant’s reasons are a pretext for illegal discrimination.

Assuming that the employee in this case presented a prima facie case under #1, above, the defendant-employer successfully met its burden under #2, above, by establishing that it fired the employee because of her poor performance.

To meet the burden of #3, above, the employee needed to show not only that the employer’s reason for firing her was false, but also that the employer’s motivation in firing her was, more likely than not, discriminatory. Her evidence of discriminatory intent included the assertion that ever since she refused to take a severance package offered to her in 2002, the employer was out to get her. However, the court pointed out that if the employer had wanted to let her go in 2002, they could have done so. And, the company later gave her an opportunity to improve her declining performance.

As further evidence, the employee asserted that another employee who worked on the costly print job error was not disciplined. The court declared that an employer’s decision to discipline only one employee does not create a cause of action for discrimination under the NJLAD. Overall responsibility for the print-job error admittedly rested with the employee, who was unable to present facts to show discriminatory intent based on gender or sexual orientation.

Brunner v. Vertis, Inc., et al., Docket No. A-0036-07T1 (Sup Ct NJ App Div 2008).


This case illustrates the importance for employers of documenting complaints and meetings about employee performance and of placing that documentation in the employee file. In this case, it looks like the employer’s good record-keeping was a saving grace for them in providing evidence countering the employee’s claims.

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Change in employee’s work hours leads to unemployment benefits

Last Wednesday, the Superior Court of New Jersey, Appellate Division, affirmed an award of unemployment benefits to an employee whose employer had changed her work hours to interfere with her child care arrangements.

The employee worked from 8:30am  to 4:30pm, but had difficulty getting to work on time every day because of the traffic.  Her supervisor asked her to think about changing her hours to 9am to 5pm, but the employee resisted because she would not have enough time to pick up her child by 5:30pm, when the after-school program closed.  As a compromise, the employee suggested she work from 8:45 to 4:45, a notion that the employer rejected out of hand.  The employee left her employment as a result.

In its opinion, the Court provides an interesting discussion of “good cause” under the law’s provision that a person who leaves work without good cause attributable to the work is disqualified from receiving unemployment benefits.  Good cause, the Court says, generally means enough cause to justify the employee’s voluntary departure from employment.  Good cause is directly related to the employment and gives the employee no choice but to leave employment.

The Court examined a prior case involving an employee’s transportation problem.  When a transportation issue arises solely from the employee’s personal circumstances, it is not enough to provide good cause, the Court recalled.  If the transportation issue stems from a change in working conditions unilaterally instituted by the employer, an “evaluation and balancing” of factors must be done to determine eligibility for benefits.

While this case involved a unilateral change in work hours instituted by the employer, it caused a child care problem instead of a transportation problem.  The employee had the same child-care arrangements for a long time and yet the employer had given her no time to find alternate arrangements, rejecting a compromise proposal for the employee.

These circumstances resulted in the Court’s affirming the prior award of unemployment benefits to the employee.


The procedural history of this case is worth noting.  The employer protested the employee’s application for unemployment and the Appeal Tribunal sided with the employer, denying benefits.  But the Board of Review found in favor of the employee, rejecting the Appeal Tribunal’s finding that the unilateral change in working hours was insubstantial.

This procedural history shows that what seems like a fairly simple issue at first blush – the conflict between working hours and child care – is actually fairly complicated and can be difficult to decide, requiring a balancing of several factors.

Silent Type, Inc. v. Board of Review, et al., Docket No. A-0403-07T3 (Superior Ct of NJ, App Div 2008).

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