SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
The issue in this appeal is whether the New Jersey Division of
Workers’ Compensation properly exercised subject-matter jurisdiction over a claim by a Port Authority
employee alleging occupational pulmonary disease based on four months of exposure to certain
cleaning agents and other chemicals in New Jersey that predated twenty-one years of
similar exposure in New York.
John Williams was employed by the Port Authority from 1969 until the time
of his retirement in 1997. For the most part during the course of
his employment with the Port Authority, Williams worked in New York, where he
also resided. Throughout the entire course of his employment with the Port Authority,
including four months in 1973 during which he worked on the New Jersey
side of the George Washington Bridge, Williams used and was exposed to various
cleaning agents, fumes, and other strong chemicals from which he ultimately claimed that
he sustained pulmonary disease. Williams first sought medical treatment for his pulmonary problems
in 1993 – some twenty years after his exposure in New Jersey. Williams retired
from his position with Port Authority in 1997, based on his age.
In May 1997, Williams filed an occupational workers’ compensation claim with the
Division of Workers’ Compensation (Division) alleging, among other conditions, pulmonary disability related to
his work exposure between September 1969 and May 1997. Although the Port Authority
raised the defense of lack of subject-matter jurisdiction in its answer, the Judge
of Compensation reserved decision on the jurisdictional issue until the conclusion of the
trial. At the conclusion of the trial, the judge found that the Division
should exercise jurisdiction and awarded Williams a partial permanent disability of twenty percent
for chronic bronchitis. The Port Authority appealed, contending that the Division should not
have exercised extraterritorial jurisdiction.
In a published opinion, a divided panel of the Appellate Division affirmed, concluding
that Williams had sustained an injury in New Jersey during the four months
of exposure in this State. In determining whether Williams’ four-month employment exposure in
New Jersey was sufficient to permit the Division to exercise jurisdiction, the panel
determined that New Jersey’s decisional law regarding apportionment of occupational disease disability among
successive employers and case law related to the computation of the statute of
limitations in occupational disease cases should be followed, citing Bond v. Rose Ribbon
& Carbon Mfg. Co. , and Earl v. Johnson and Johnson. The majority
concluded that Williams’ exposure to the cleaning agents and other chemicals in New
Jersey was not a casual, brief or insubstantial period of exposure. The majority
further concluded that because it could not be determined at what point during
the twenty-one year exposure the pulmonary disease process commenced, it should be deemed
to have commenced simultaneously with the beginning of the exposure in New Jersey.
The dissenting member of the panel concluded that the majority’s reliance on Bond
and Earl was misplaced, asserting that the issue before the court was one
of jurisdiction and not one involving the statute of limitations, liability for exposure,
or waiver of workers’ compensation benefits. Judge Wefing concluded that Williams’ four months
of work in New Jersey, which predated the termination of his last exposure
by more than twenty-one years, were insufficient to warrant New Jersey exercising jurisdiction.
The appeal is before the Supreme Court as a matter of right, based
on the dissent in the Appellate Division.
HELD : Petitioner’s exposure to allegedly harmful chemicals during four months of his employment
in New Jersey, while employed by the Port Authority of New York and
New Jersey, cannot satisfy the injury requirement for the exercise by the New
Jersey Division of Workers’ Compensation of extraterritorial jurisdiction.
1. Although the Court held in Boyle v. G.&K. Trucking Co., that the
Division had jurisdiction to entertain a claim filed by a resident employed by
an out-of-state business when he was accidentally injured in New Jersey while performing
duties in this state on a work assignment from his employer, that case
did not purport to establish a standard with respect to occupational disease claims.
(pp. 6-7)
2. The fact that an employer is a bi-state agency has not before
been recognized as a basis to assume jurisdiction. The traumatic accidents involved in
Boyle and similar cases that caused injury in New Jersey (thereby satisfying Larson’s
place of injury extraterritoriality requirement) involved claims that allegedly satisfied the Act’s requirements
for a compensable accident. For extraterritorial purposes, while a single traumatic event forms
the sole basis for compensation sought for the injuries caused by the event,
and the single accidental injury involved in the Boyle-type case provides a substantial
nexus to New Jersey, an occupational injury based on an occupational exposure at
work over a period of time is much more complex. (pp. 7-9)
3. Although many occupational diseases generally remain unknown or undisclosed throughout a long
history of continued work exposure, that fact alone is an insufficient basis to
hold that any exposure in New Jersey, even for a few days or
weeks that may minimally contribute to the development of an occupational disease, should
permit the Division to exercise jurisdiction. (p. 9)
4. Because there are critical differences between accidental and occupational injuries, the appropriate
starting point in the formulation of a standard for deciding when to exercise
extraterritorial jurisdiction in occupational injury cases is the occupational disease section of the
Workers’ Compensation Act itself, which defines “compensable occupational diseases” as those established to
have arisen out of and in the course of employment, which are due
in a material degree to causes and conditions that are or were characteristic
of or peculiar to a particular trade, occupation, process, or place of employment.
(pp. 9-10)
5. In order to invoke the jurisdiction of the Division in extraterritorial occupational
disease cases based on the occurrence of injury in New Jersey, the petitioner
must demonstrate either that (1) there was a period of work exposure in
this State that was not insubstantial under the totality of circumstances and given
the nature of the injury; (2) the period of exposure was not substantial
but the materials were highly toxic; or (3) the disease for which compensation
is sought was obvious or disclosed by medical examination, work incapacity, or manifest
loss of physical function while working in New Jersey. Applying that standard to
this case, exposure for the relatively short period at issue cannot satisfy the
injury requirement, especially given the fact that the exposure was not to highly
toxic materials known to cause disease even with minimal contact, such as asbestos
or PCBs. Those occupational exposures require a more flexible standard. (pp. 10-12)
6. Williams’ brief period of exposure in New Jersey cannot be said to
have contributed to a material degree to the development of is chronic bronchitis
that was not diagnosed until twenty years after his New Jersey exposure had
ended, and any injury Williams suffered while working in New Jersey was so
minor that it was not compensable. (pp. 13-14)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED
to the Division of Workers’ Compensation to dismiss the claim petition.
JUSTICE LONG has filed a separate dissenting opinion, in which JUSTICE ZAZZALI
joins. Justice Long is of the view that Williams’ period of exposure was
not casual, brief, or insubstantial, and that New Jersey has more than a
casual connection to the employment. She further believes that because Williams’ choice of
jurisdictions each had more than a casual interest in his claim, he was
entitled to invoke the jurisdiction of the state whose laws would provide the
highest available amount of compensation from his employer, which in this case, was
New Jersey.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, LaVECCHIA, and ALBIN join in JUSTICE COLEMAN’s
opinion. JUSTICE LONG has filed a separate dissenting opinion, in which JUSTICE ZAZZALI
joins.
Petitioner-Respondent,
v.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY,
Respondent-Appellant.
Argued October 8, 2002 – Decided January 14, 2003
On appeal from the Superior Court, Appellate Division, whose opinion is reported at
345 N.J. Super. 549 (2001).
Michael D. Driscoll argued the cause for appellant (Hugh H. Welsh, Deputy General
Counsel, attorney; Christopher J. Neumann, Howard D. Conkling and George P. Cook, on
the briefs).
Brian P. Campbell argued the cause for respondent.
The opinion of the Court was delivered by
COLEMAN, J.
In this workers’ compensation case, the petitioner has filed a claim alleging that
he has sustained an occupational pulmonary disease that is causally related to his
twenty-eight years of employment with the Port Authority of New York and New
Jersey (Port Authority). The sole issue before us is whether the New Jersey
Division of Workers’ Compensation (Division) should have exercised subject-matter jurisdiction based on four
months of exposure in New Jersey that predated twenty-one years of subsequent exposure
in New York. The Division and a majority in the Appellate Division held
that the four-month exposure was sufficiently substantial to constitute injury, thereby conferring jurisdiction.
We disagree and reverse.
[9 Larson’s Workers’ Compensation Law § 142.01 at 142-2 (2000).]
Professor Larson also provides guidance with respect to which state’s law should control
if jurisdiction is exercised. He states:
When one of these [factors] falls within the local state, and some or
all of the others occur in another state, the question arises whether the
local state can apply its statute without being accused of denying full faith
and credit to the statute of the other. As matters now stand, it
is clear that the state which was the locus of any one of
the first three items-contract, injury or employment-and probably also of the next two-employee
residence and business localization-can constitutionally apply its statute if it wants to.
[Ibid.]
Although the New Jersey Workers’ Compensation Act (Act),
N.J.S.A. 34:15-1 to –128, does
not address the issue of extraterritoriality, Connelly v. Port Authority,
317 N.J. Super. 315, 318 (App. Div. 1998), all of the cases cited in Boyle involve
accidents occurring in New Jersey as opposed to periods of occupational exposure within
New Jersey. Id. at 107-08. The fact that the employer is a bi-state
agency has not heretofore been recognized as a basis to assume jurisdiction. Connelly,
supra, 317 N.J. Super. at 320-21. Indeed, the majority in this case recognized
as much. Williams, supra, 345 N.J. Super. at 553.
The traumatic accidents involved in Boyle and cases cited therein that caused injury
in New Jersey, thereby satisfying Professor Larson’s place of injury extraterritoriality requirement, involved
claims that allegedly satisfied the Act’s requirements for a compensable accident,
N.J.S.A. 34:15-7.
There is a substantial difference between an accidental injury and an occupational injury.
A compensable accident, although not defined in the Act, has been defined judicially
as an “‘unlooked for mishap or an untoward event which is not expected
or designed.’” Ciuba v. Irvington Varnish & Insulator Co.,
27 N.J. 127, 134
(1958); Joy v. Florence Pipe Foundry Co.,
64 N.J. Super. 13, 20 (App.
Div. 1960) (quoting Bryant v. Fissell,
84 N.J.L. 72, 76 (N.J. Sup. Ct.
1913)), certif. denied,
34 N.J. 67 (1961). Thus, the concept of injury is
simple when the injury has been caused by a traumatic accident, such as
occurred in Boyle, because the injuries are evident almost immediately. For extraterritorial-jurisdictional purposes,
a single traumatic event forms the sole basis for compensation sought for the
injuries caused by the event. Therefore, the single accidental injury involved in the
Boyle-type case provides a substantial nexus to New Jersey.
In contrast, an occupational injury based on an occupational exposure at work over
a period of time is much more complex. Yet, when a petitioner seeks
to invoke the subject-matter jurisdiction of the Division based on the assertion of
an occupational injury, meaning an occupational case in which the injury was caused
or occurred in New Jersey, a standard must be established that is comparable
to the Boyle standard used in accident cases. Such a standard is required
because the Act directs that claims for accidental injuries and death, and claims
for occupational injuries and death, generally should be treated the same.
N.J.S.A. 34:15-35.
However, unlike most accidental-traumatic injuries, many occupational diseases generally remain unknown or undisclosed
throughout a long history of continued work exposure. But that fact alone is
an insufficient basis to hold that any exposure in New Jersey, even for
a few days or weeks that may minimally contribute to the development of
an occupational disease, should permit the Division to exercise jurisdiction.
Because there are critical differences between accidental and occupational injuries, the appropriate starting
point in the formulation of a standard for deciding when to exercise extraterritorial
jurisdiction in occupational injury cases is the occupational disease section of the Act
itself, 140 N.J. 452, 467 (1995) (quoting Dwyer v. Ford Motor Co.,
36 N.J. 487,
493-94 (1962)); see also
N.J.S.A. 34:15-7.2 (defining material degree as “an appreciable degree
or a degree substantially greater than de minimis”).
Being guided by the principle that New Jersey generally will take jurisdiction and
apply its Act when the State has a substantial interest, such as when
an injury has occurred in this State, we adopt the following benchmark for
determining when there is jurisdiction in New Jersey in an occupational disease case.
The three-part test that we adopt reflects in part the standard this Court
adopted for determining when to apportion liability among successive insurers in such cases.
We hold that, in this case, exposure for the relatively short period at
issue cannot satisfy the injury requirement. The exposure was not to highly toxic
materials known to cause disease even with minimal contact, i.e., asbestos and polychlorinated
biphenyls (PCBs). In other words, in order to invoke the jurisdiction of the
Division in extraterritorial occupational disease cases based on the occurrence of injury in
New Jersey, the petitioner must demonstrate either that (1) there was a period
of work exposure in this State that was not insubstantial under the totality
of circumstances and given the nature of the injury; (2) the period of
exposure was not substantial but the materials were highly toxic; or (3) the
disease for which compensation is sought was obvious or disclosed “by medical examination,
work incapacity, or manifest loss of physical function,” while working in New Jersey.
Bond, supra, 42 N.J. at 311; see Akef v. BASF Corp.,
140 N.J. 408, 415 (1995); Giagnacovo v. Beggs Bros.,
64 N.J. 32, 37-38 (1973). That
test is consistent with the Act’s requirement that a partial-permanent disability, whether caused
by an accident or an occupational disease, must be “based upon demonstrable objective
medical evidence, which restricts the function of the body or of its members
or organs,”
N.J.S.A. 34:15-36, or that the exposure was substantial enough to infer
that injury occurred even in the absence of any manifestation of the disease.
We recognize the need for a more flexible standard for those occupational exposures
that cause more seriously disabling diseases. When the occupational exposure in this State
has been to highly toxic materials, chemicals or substances such as asbestos or
PCBs, for jurisdictional purposes, injury will be presumed to have occurred beginning with
the early exposure and continued throughout the exposure even though manifestation of a
disease may not occur until the exposure had ended. When exposures are highly
toxic, it is presumed that injury occurred even during the latency period. See
Owens-Illinois, Inc. v. United Ins. Co.,
138 N.J. 437, 451-54 (1994). In those
cases, it is not merely the exposure that permits the Division to exercise
jurisdiction, but a combination of exposure and the early infliction of permanent injury.
In that class of cases, this Court has recognized that
“[t]he medical evidence is uncontroverted that ‘bodily injury’ in the form of tissue
damage takes place at or shortly after the initial inhalation of asbestos fibers.
. . .”
[T]he courts which have endorsed the “exposure” theory in the asbestosis cases have
not said that mere exposure to a substance is a “bodily injury.” .
. . Rather, those courts have concluded from medical testimony that the inhalation
of asbestos causes immediate tissue damage, although the effects of that damage do
not immediately manifest themselves . . . .
[Hartford Acc. & Indem. Co. v. Aetna Life & Cas. Ins. Co.,
98 N.J. 18, 28 (1984) (quoting unpublished opinion of Skillman, J.S.C.) (quoting Insurance Co.
of N. Am. v. Forty-Eight Insulations,
633 F.2d 1212, 1222 (6th Cir. 1980),
certif. denied,
454 U.S. 1109,
102 S.Ct. 686,
70 L.Ed.2d 650 (1981)).]
The three-part jurisdictional standard we have articulated is more analogous to the processing
of occupational claims against the first employer in a chain of employers involving
the same or similar work exposure over many years than to statute of
limitations issues posed under
N.J.S.A. 34:15-34. Here, petitioner can file a claim in
New York where approximately 98.4% of his exposure occurred. Cases addressing statute of
limitations issues under
N.J.S.A. 34:15-34 have reasoned that unless the claim can proceed
in New Jersey, the petitioner would forever be foreclosed from having his or
her claim heard. That rationale simply does not apply in extraterritorial-jurisdictional cases. We
nevertheless adjure the Division in the first instance to apply the standard we
adopt flexibly on a case-by-case basis bearing in mind the multiple combinations of
exposure.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, LaVECCHIA and ALBIN join in this opinion. JUSTICE LONG filed a separate dissenting opinion in which JUSTICE ZAZZALI joins.
Petitioner-Respondent,
v.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY,
Respondent-Appellant.
LONG, J., dissenting.
I would affirm substantially for the reasons expressed by the Appellate Division in
the thorough and thoughtful opinion penned by Judge Pressler. Williams v. Port Authority,
345 N.J. Super. 549 (2001). In my view, that decision stands on well-settled
legal principles governing jurisdiction.
[Connolly v. Port Auth.,
317 N.J. Super. 315, 320 (App. Div. 1998).]
Connolly went on to address Professor Larson’s “industry localization” factor and held that,
although that factor “is not sufficient ipso facto to establish jurisdiction,” it “can
be one of several considerations . . . .” Id. at 321 (emphasis
added). Indeed, localization was specifically considered in Phillips v. Oneida Motor Freight, Inc.,
163 N.J. Super. 297, 303 (App. Div. 1978), where Judge Conford, writing for
the court, held that jurisdiction can be exercised even when the injury, the
execution of the contract, and the residence of the employee are elsewhere if
the “composite employment incidents present a[n] . . . identification of the employment
relationship with this State.” Ibid. In Phillips, the employer’s localization in New Jersey
was one of the composite employment incidents justifying the exercise of jurisdiction. Ibid.
That is the backdrop for our inquiry.
[Williams, supra, 345 N.J. Super. at 557.]
That principle is well established. See Owens-Illinois, Inc. v. United Ins. Co.,
138 N.J. 437, 451 (1994) (commenting that in environmental contamination insurance coverage cases, injury
is considered as simultaneous with exposure); Bond v. Rose Ribbon & Carbon Mfg.
Co.,
42 N.J. 308, 311 (1964) (holding liable employer or compensation insurance carrier
during whose employment or coverage progressive occupational disease was disclosed when triggering or
inception date of disease is unknown and undisclosed). The experienced Workers’ Compensation judge
and all the judges of the Appellate Division (including the dissenter) accepted the
notion that, for practical reasons, the onset of progressive occupational disease and exposure
must be considered “equatable.” Williams, supra, 345 N.J. Super. at 557. Once that
is accepted, it follows, as a matter of law, that at least some
of Williams’s injury occurred in New Jersey.
The Appellate Division elaborated on the point, noting that, as a matter of
fact, the period of exposure was not “casual, brief or insubstantial”:
We are persuaded that petitioner’s four-month exposure on a daily basis was sufficiently
substantial to constitute an injury. During that time period, as he described his
job, he was, on a daily basis and for eight hours each day,
cleaning toll booths inside and out, "sweeping, degreasing with chemicals which cut the
grease from the cement and also cleaning windows on the booths where people
breeze through." He used the degreasing chemicals both in cleaning tollbooths and in
"washing down the tiles in the tunnel where the bridge meets coming out."
With respect to the tunnel tiles, he explained that they have what they
call a flush truck and you would get on the truck and you
would wash the walls down with cleaning chemical and like a mop." He
further explained that
Yeah, [I was] exposed to like smoke and stuff from the cars because
you're inside this tunnel and they don't close the whole tunnel. They don't
close down like one lane and you're dealing with the smoke and smog
coming from the traffic and fumes from the traffic going back and forth
out. And also there's accumulation from the smell. From the cleaning agent is
a smoke, I mean a chemical that you will smell too. It is
not, you know, very healthy.
Certainly Port Authority recognized that the hazard was sufficient to require respirator masks
although, according to petitioner, they were not provided on a daily basis.
In our view this was not a casual, brief or insubstantial period of
exposure.
[Id. at 556-57.]
Moreover, the employment relationship between Port Authority and Williams was carried out, in
part, in New Jersey. As the Workers’ Compensation judge emphasized:
Whether subject matter or in personam, the Port Authority lost its jurisdiction argument
when it assigned Mr. Williams to work in New Jersey. It is quite
clear that had Mr. Williams sustained an accident while working in New Jersey,
he could file a claim in New Jersey without objection by the respondent.
He should also be able to file in New Jersey when his occupational
exposure was, at least in part, incurred in New Jersey. This is especially
so when it was the respondent alone who controlled and determined whether the
petitioner would work in New Jersey. The respondent Port Authority put Mr. Williams
in New Jersey as well as New York; by assigning the petitioner to
work in New Jersey -- four months of degreasing tunnels and toll lanes
-- the respondent itself created this significant purposeful contact with New Jersey. The
Port Authority could have prevented this contact with New Jersey and could have
ensured that any workers’ compensation claim by Mr. Williams would be cognizable only
in New York had it assigned Mr. Williams to jobs only in New
York. It did not do so, and it is unseemly for the respondent
Port Authority, who created the situation, to contend now that it is being
unfairly or improperly brought into New Jersey to defend Mr. Williams’s case.
In sum, the Port Authority, a bi-state agency with a major presence in
New Jersey, purposefully assigned Williams to work here and in so doing exposed
him to noxious substances. It was here that, as a matter of law,
some of Williams’s injury is deemed to have occurred. Plainly, the composite employment
incidents reveal that New Jersey’s interest is more than fleeting and casual.
Had New York been chosen as a forum by Williams, that state also
would have been empowered to exercise jurisdiction over the claim based on service
in that venue along with “localization” of the Port Authority and place of
injury. In other words, Williams was presented with a choice between two jurisdictions,
each of which had more than a casual interest in his claim. In
exercising that choice, he was entitled to invoke the jurisdiction of the state
whose laws would provide the highest available amount of compensation from his employer.
In this case, that was New Jersey.
[Ante at __ (slip op. at 11).]
There are several problems with that articulation. First, it confuses jurisdictional principles with
those underlying liability and apportionment. Indeed, that confusion is underscored by the authority
the majority cites as supporting its standard. Bond, supra,
42 N.J. 311 (establishing
standard for apportioning compensation liability for occupational exposure disease between successive employments or
insurance coverages); Akef v. BASF Corp.,
140 N.J. 408 (1995) (determining which, among
successive employers, was to be held liable for worker’s occupational disease); Giagnacovo v.
Beggs Bros.,
64 N.J. 32 (1978) (deciding whether exposure of petitioner during last
period of employment, though short, contributed to his occupational disease). It may make
sense to set forth detailed standards to determine liability and apportionment in an
occupational disease case between sequential employers and insurers to assure parity between risk
exposure and the actual payment of a compensation award. However, such details, and
the trial that will be required to resolve them, have no place whatsoever
in a jurisdictional analysis involving the question of which state will adjudicate a
worker’s claim against a single employer.
More importantly, the majority opinion effectively singles out one class of workers, those
who by happenstance have been exposed to noxious substances both within and outside
our borders, for a different jurisdictional burden than all other workers. There is
simply no warrant for such a move. All workers’ compensation cases should be
subject to the same jurisdictional threshold and to the analysis by which we
have classically abided. As a judicial system, we have absolutely no interest that
will be vindicated by closing our doors to workers like Williams.
For those reasons I dissent.
Justice Zazzali joins in this opinion.
NO. A-99 SEPTEMBER TERM 2001
ON APPEAL FROM Appellate Division, Superior Court
JOHN J. WILLIAMS,
Petitioner-Respondent,
v.
THE PORT AUTHORITY OF NEW YORK AND
NEW JERSEY,
Respondent-Appellant.
DECIDED October 8, 2002
Chief Justice Poritz PRESIDING
OPINION BY Justice James H. Coleman, Jr.
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Virginia A. Long
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CHECKLIST |
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AFFIRM | |
| CHIEF JUSTICE PORITZ |
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| JUSTICE COLEMAN |
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| JUSTICE LONG |
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X | |
| JUSTICE VERNIERO |
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| JUSTICE LaVECCHIA |
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| JUSTICE ZAZZALI |
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X | |
| JUSTICE ALBIN |
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| TOTALS |
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2 | |