CP# 97-014020, 97-014033 Peck v. Newark Morning Ledger
C.P. Nos. 97-014020 and 97-014033
March 13, 2000
Petitioner filed claim petitions alleging work-related carpal tunnel disability to his right hand ( C.P. 97-014020) and to his left hand (C.P. 97-014033). Respondent Newark Morning Ledger Co., which publishes The Star- Ledger newspaper, filed a Motion to Dismiss the claims on the basis that petitioner’s right to pursue an occupational disease claim is barred by respondent’s election to opt-out of the workers’ compensation system for occupational matters. In contesting the motion, petitioner maintains that respondent’s opt-out election is invalid and not enforceable.
The parties agreed that petitioner’s employment as a mailer resulted in repetitive motion occupational exposure and that the medical treatment rendered to petitioner was reasonable and necessary for his carpal tunnel condition. It is noted that the term "waiver" has been utilized throughout these proceedings as synonymous with the elimination of worker’ compensation act coverage and the election of Article I procedures as set forth in N.J.S.A. 34:15-1 et. seq. Counsel for the Uninsured Employers’ Fund participated as an amicus in these proceedings.
Petitioner testified that he has been a mailer for the respondent since 1976 and at the time of hire no waiver of workers’ compensation benefits was required. However, petitioner stated that on September 26, 1984 he signed a waiver document (R-1) as required by his supervisor. It was his understanding that if he did not sign the waiver, he could not work for respondent. At the time of the 1984 waiver, petitioner indicated that he had recently purchased a home and needed to keep his job. Further, petitioner maintained that he was later asked to sign a second waiver which respondent can no longer locate. Petitioner insisted that it was his impression based on discussions with his co-workers and the union president that the waivers were required under the union contract and were only a bar to hearing disability claims. During his testimony petitioner had difficulty reading the 1984 document and indicated that although he graduated from high school he was not a good reader. In 1996 he had carpal tunnel surgery to his left hand and in 1997 he had similar surgery to his right hand.
Mr. Bruce Berry, labor and employment counsel to the respondent, stated that he has been involved with negotiations with petitioner’s union since the 1970's and that there had been a concern by respondent with occupational claims filed by the mailers. In fact, Mr. Berry testified that respondent felt that the mailers had been considering workers’ compensation as "an additional fringe benefit" and therefore respondent insisted that waiver language be included in labor agreements starting in 1979. Further, Mr. Berry presented that he assisted in the drafting of the waiver form. He maintained that the waiver was first required to be signed by the mailers in 1979, then 1984 and then again in 1996 or 1997. Only Mr. Peck’s 1984 form was presented at trial. Mr. Berry also testified that only the mailers and no other Star- Ledger employees were required to sign the waivers. Additionally, he stated that respondent did not negotiate the language of the waiver with individual workers and that any worker who did not sign the waiver would be terminated with no grievance or other hearing rights.
As general foreman in the mailroom, Mr. Bernard Arnold testified for respondent and indicated that at the 1979 union meetings the mailers were first advised that the waiver form was only to eliminate hearing loss claims. He stated that they were later informed by the union that an occupational disease was "[a]nything other than falling down and breaking your leg or arm." Mr. Arnold stated that when he resisted in 1979 to signing the waiver, he was advised that he would be terminated. Additionally, he presented that Mr. Peck is on the "A" list of employees. Mr. Arnold elaborated that while this category of employee generally has lifetime employment, even the "A" list employees would have been fired if they did not sign the waivers.
A final witness was Mr. John Starkes, Vice President and Claims Manager for John L. Gwydir Company, who testified concerning respondent’s insurance policies. In particular, he discussed exhibits R-14 and R-15, insurance policies of respondent’s parent company Advanced Publication, Inc. He noted that general workers’ compensation matters are listed under coverage 3A. However, it was his impression that a waived occupational such as Mr.Peck’s situation would have a source of coverage under 3B, employers liability coverage. He explained 3B as "a liability policy not compensation" which would only be applicable on a showing of employer negligence. The policies also set limits on payments by the carrier under 3B. For instance, Mr. Stakes stated that R-14 under 3B has a specific limit of $150,000 per employee and a $500,000 overall limit for all employees per policy year.
Mr Stakes also testified that he was unaware of any claims under 3B and any amounts over the $500,000 would have to be paid from a separate policy for excess insurance. No such policy for excess insurance was presented at trial. Specifically, Mr. Stakes stated that when workers’ compensation is waived, the policy is deemed a general liability policy. The only example of a claim under 3B that Mr. Stakes was familiar with would be a situation involving a suit by an employee against a manufacturer for defective equipment in which the manufacturer impleads the employer. Mr. Stakes was not familiar with the waiver form and appeared to imply, contrary to the apparent position of the respondent, that a dependent of a mailer whose death is related to occupational exposure would be covered under 3A of the policies for a dependency claim.
The issue in the present case is whether respondent, through its labor agreement and individual waiver forms, has effected a valid Article I election and legally excluded petitioner’s occupational claims from the Article II coverage of the workers’ compensation act. If respondent is correct, then petitioner’s claim is noncompensable and this court has no jurisdiction to consider the extent of petitioner’s asserted disabilities. In addressing this matter, some key uncontested facts emerge. First, the attempted exclusion would only cover the occupational claims of employees in the mailer job title. The mailers including petitioner have continued to file accident claims without respondent objection under Article II and all employees except the mailers have been able to file occupational claims. Second, petitioner’s endorsement of the waiver forms was a condition of his continued employment with respondent despite his tenured status. Petitioner would have been terminated had he not signed the waivers. Third, the labor agreement and waiver forms were not required or implemented until several years after petitioner’s admitted occupational exposure began.
It is well settled that the workers’ compensation act is remedial legislation that is to be given a broad and liberal interpretation as to its coverage. As stated in Danillo v. Machise Exp. Co., 119 N.J. Super. 20, 23-24 (Law Div. 1972), aff’d 122 N.J. Super. 144 (App. Div. 1973 ), "[t]o accomplish purposes for which the compensation law was enacted, the court will give its provisions the most liberal construction that it will reasonable bear in favor of the injured employee in order to avoid harsh results to the worker and his family." Moreover, it has been stated that "the policy of the compensation law is that compensation shall be paid for every compensable experience, and no employee shall waive what is due." Accident Index Bureau, Inc. v. Hughes, 46 N.J. 160, 164 (1965).
The starting point for reviewing respondent’s motion is N.J.S.A. 34:15-9 in Article II of the workers’ compensation act which provides:
Every contract of hiring ... shall be presumed to have been made with reference
to the provisions of this article, and unless there be as a part of such contract
an express statement in writing prior to any accident, either in the contract itself
or by written notice from either party to the other, that the provisions of this
article are not intended to apply, then it shall be presumed that the parties have
accepted the provisions of this article and have agreed to be bound thereby.
There is thus a presumption that employers and employees accept the workers’ compensation provisions under Article II, N.J.S.A. 34:15-7 et seq., unless there is a contract or express written election not to be bound by this administrative process. Those not covered by the act would have their work-related disability claims reviewable in a liability or court action covered under Article I, N.J.S.A. 34:15-1 et seq.
The Article I or Article II coverage process is discussed at length in Naseef v. Cord, Inc., 48 N.J. 317, 322-323 (1966), where the Court stated:
New Jersey has what is commonly known as an ‘elective state’
of workmen’s compensation .... Under this system either the employer
or employee may reject the ordinary system of compensatory non-fault liability
(In New Jersey, Article II coverage), thus leaving the employer liable to his
employee for only common-law negligence (in New Jersey, Article I coverage).
In the case of Article I coverage, the employee’s claim may not be defeated
by the defenses of ordinary negligence ... assumption of risk ... or negligence of
a fellow-employee .... Most employers are thereby led to accept liability without
fault according to Article II of the Workmen’s Compensation Act.
In reviewing N.J.S.A. 34:15-9, the Court further reasoned:
Not only may the parties enter into an agreement that Article II of the
Worker’s Compensation Act shall not apply, but also either the employer or the
employee may make this selection so long as the other gives written notice to
the other prior to a compensable accident. ... [T]he required notice must be
clear and comprehensible so that the recipient of the notice understands the purport
of the contract provision or the written notice. Id. at 322.
In striking down the exclusion provision there at issue since it was not clear as to petitioner’s rights, the Naseef Court reaffirmed that the workers’ compensation law is to be liberally construed in favor of statutory coverage. It also emphasized that an employer must strictly comply with the notice provisions if it seeks to deprive workers of Article II benefits. In a footnote to the decision, the Court noted that the elective concept of compensation rather than compulsory coverage was enacted in New Jersey because there was apprehension by the legislature at the time the statute was enacted that a compulsory act might be unconstitutional. As the footnote explains, the United States Supreme Court later upheld compulsory coverage as enacted in other states. Most states have since enacted compulsory coverage and New Jersey, South Carolina and Texas are now apparently the only elective states. Larson’s Workers’ Compensation, Section 67.10 (2000). See also, John Hancock v. Mutual Life Ins. Co. v. Lieb, 11 N. J. Misc. 316 (Sup. Ct. 1933), where the court held the notice insufficient to withdraw Article II coverage.
Micieli v. Erie R. Co., 131 N.J.L. 427 (E & A 1944), concerned a situation where a railroad employee utilized a pass provided by the employer for transportation. The pass had a notice that the pass holder assumed, among other things, all risk of accident. While that Court noted that employers and employees may under proper procedures elect to exempt themselves from workers’ compensation coverage, the Court found the pass exclusion invalid and held at 429-430:
[W]here the employer elects ... to come under the provisions of the
statute, legal liability thereunder may not be removed or narrowed by
private agreement. This statute was enacted for the general welfare
of employees as a class. Society itself has an interest in the matter
and it is contrary to the policy of the statute to permit the employer,
while choosing to come under Article 2 of the statute, supra, by failing
to make a declaration in writing to the contrary, to escape full liability
under the Act by any agreement with the employee which diminishes the
rights assured him by the statute. Any such agreement is void because
it is against the declared public policy of the state.
Thus, the employer’s attempt to limit Article II coverage with the pass notice was found to be invalid. See also, Calandra v. Standard Bitulithic Co., 91 N.J. Misc. 1307 (Sup. Ct. 1931), where petitioner was found to be covered by workers’ compensation since the contract of employment with an Article I election had not been entered knowingly and intelligently.
In an administrative decision, Royal Insurance Co. v. Pohlman, 95 N.J.A.R. 2d (WCC) 83, 86 (1994), the court found the Article I election notice there at issue to be invalid. The court considered that an enforceable notice must include, among other things, a description "in exact detail the benefits which each party would receive under Article I and Article II and the risks inherent in rejecting Article II in favor of Article I" and "independent evidence to show that the parties understood exactly what they were getting and what they were giving up." This decision also indicated that the election has to be by mutual agreement without "fraud, duress, misrepresentation or undue influence" in the process.
My review evidences no case where the Article I election process and notice have been upheld. The case law also clearly emphasizes the statutory presumption for Article II coverage and the strict requirements that have been imposed for a valid Article I selection.
I was impressed by petitioner’s appearance and demeanor and found his testimony clear, consistent and trustworthy. In particular, it was evident that petitioner has no real understanding of the waiver notice presented at trial (R-1 ). In particular, he had great difficulty reading the waiver which was given to him to be signed on the threat of employment loss. I also accept as fact his testimony that he believed the waivers he was required to sign only affected or denied the filing of hearing loss claims since that had apparently been an area of contention between management and the mailers. Mr. Arnold’s testimony in some respects also focused on the confusion and lack of clarity concerning the waiver provisions. In particular, the union presentations as detailed by Mr. Arnold included varying interpretations of what was included under the occupational disease category. This raises serious doubts that a full understanding of the mailers workers’ compensation rights or attempted curtailment of rights was ever meaningfully explored. Further, as I will discuss below, the waiver provision in evidence was ambiguous concerning the legal options available to the mailers for work accidents and/or occupational illnesses.
Mr. Barry’s testimony, in my judgment, exhibited a lack of understanding of New Jersey’s workers’ compensation system and its purposes. He first presented respondent’s concerns about the number of occupational claims being filed. However, the way respondent attempted to deal with the issue through its negotiations posture and employee termination threats seems out of character for a newspaper that is often viewed as progressive and thoughtful. Clearly, respondent could have contested in this court any claims that it considered to be noncompensable. While no one from the union testified, it is difficult to understand the union’s acceptance of the waiver provision as finalized in its bargaining agreements. Mr. Stakes’s testimony also failed to demonstrate a clear knowledge of the workers’ compensation program in New Jersey, the effect of the waiver on employees and their dependents and respondent’s overall insurance coverage with respect to the mailers.
Having considered the full record in these cases, I make the following findings of fact and conclusions of law:
1. Respondent’s attempted waiver or Article I election for only occupational claims by the mailers is invalid.
The workers’ compensation law is an integrated program under Article II and there is no basis or legislative authority to separate sections or areas of coverage under Article II for an Article I election. In Giambattista v. Thomas A. Edison, Inc., 32 N.J. Super. 103, 112 (App. Div. 1954), the court discussed the history of occupational claims and found that "[o]ur current occupational disease sections, by reason of their historical development and that fact they are clearly an integrated part of the system of compensation, must be interpreted and construed in the light of the same general principles as are applied to in cases of injury or death from accident."See also, Textileather Corp. v. Great American Indemnity Co. 108 N.J.L. 121 (E & A 1931). Moreover, N.J.S.A. 34:15-8, provides that Article II coverage requires "an acceptance of all the provisions of this article."
The sections applicable to an Article I election, see N.J.S.A. 15:34-1 and N.J.S.A.15:34-9, speak only to accident cases since these sections were enacted prior to the inclusion of occupational claims in the workers’ compensation program . Subsequently enacted N.J.S.A. 34:15-35 provides that "[a]ll provisions of this article [Article II] and article 3 of the title (Section 34:15-36 et seq.), applicable to claims for injury or death by accident, shall apply to injury or death by compensable occupational disease..." Additionally, N.J.S.A. 34:15-32 provides comparable benefit programs for accidents and occupational disabilities. It could be argued that while Article II was amended to include occupational claims, the Article I election sections were not modified to allow for the waiver or opting- out of occupational claims. Under such an interpretation, only accident claims could be covered under an Article I election. However, a more useful and logical interpretation would be that N.J.S.A. 34:15-9 now includes both accident and occupational claims as a package with respect to the election provisions which would maintain the overall integration of the workers’ compensation system.
While there are some specific statutory sections and definitions to only occupational claims, the organization, process and policy guidelines encompass one system for both workplace accidents and occupational illnesses. To accept respondent’s theory that an Article I election can be fashioned unilaterally to eliminate sections of Article II coverage and apply to only targeted workers can create obvious mischief, unfairness and confusion. In particular, it is evident to those of us who are familiar with workers’ compensation proceedings that certain job categories or employees have a greater risk or potential for occupational and/or accident claims. For instance, if respondent’s pick and choose system were available, chemical workers exposed to pulmonary irritants, clerical and machine operators exposed to repetitive motions and plant workers exposed to excessively loud noises could find many employers opting-out of only Article II occupational coverage. Such employers would likely attempt however to retain Article II accident coverage where accident liability claims have the potential for large court or jury awards. Within the same work site, categories of workers such as respondent’s mailers could be singled out for one type of Article II coverage while different mixes of coverage could be implemented for other categories of workers. In fact, to accept respondent’s theory, each individual worker could be subject to various elections by management. There are also many cases where an employee files accident and occupational claims for overlapping disabilities which would make this separation of accident and occupational cases unworkable. See Peterson v, Hermann Forwarding Co., 267 N.J. Super. 493 (App. Div. 1993), certif. den. 135 N.J. 304 (1994).
While there is little direct case law in this area, the Supreme Court of South Carolina, an elective state, has addressed similar legal and policy concerns in Kennerly v. Ocmulgee Lumber Co., 34 S.E.2d 792 (1945). That Court found workers’ compensation coverage where an employee of a subcontractor who had elected the negligence system was killed when engaging in logging operations for a sawmill operator whose own employees had workers’ compensation protections. In finding that all the employees involved whether directly employed by the sawmill or the subcontractor would be found included in the workers’ compensation system, the Court held at 795:
The Act does not permit an employer to come under the terms
thereof for one part of his business and remain out as to another part
of the business where, as in this case, it is substantially and necessarily
conducted as one business. It was not the intention of the Legislature
that the Act could be accepted in part and rejected in part.
It also noted that troublesome issues could occur if employees for the same employer or operation were separated in liability and workers’ compensation categories. Such a line of demarcation between employees would likely result in administrative problems, confusion and inefficiency.
The uniform and comprehensive workers’ compensation system in New Jersey has provided stability for insurers, employers and workers. There would also be obvious problems in the workers’ compensation rate setting programs and a clear potential for fraud and abuse if unilateral and changing coverage options were allowable as maintained by respondent. Moreover, respondent has presented no legislative or policy support for its separation of accident and occupational claims under the Article I and II process. To the contrary, Article II presents a successful and longstanding integration of accident and occupational disability claims that cannot be separated through the waiver here at issue.
2. The waiver or Article I election is invalid since it was unclear and ambiguous and its implementation was contrary to public policy.
The election notice (R-l) was, in my judgment, poorly drafted, confusing and ambiguous. The lack of clarity was also exhibited through the testimony of petitioner and Mr. Arnold. Petitioner considered that only hearing claims were eliminated by the notice while Mr. Arnold presented the limited union meeting explanations. Clearly, the mailers like most workers would have difficulty in understanding legalistic terms such as Article I and II and "compensable occupational claims" as contained in the notice. Moreover, the notice fails to explain that accident claims would still be reviewable under workers’ compensation procedures. Such an ambiguous and limited notice would not comply with the intent and purpose of the workers’ compensation act and is invalid. See Naseef, supra.
Moreover, the manner of implementation through threats of job forfeiture for failing to sign the notice are troubling and undermine the attempted election process. The New Jersey Supreme Court in Kibble v. Week Dredging & Construction Co., 161 N.J. 178 (1999), recently held that the release or waiver of an individual’s potential future dependency rights must be knowingly, intelligently and voluntarily made. Such a standard would be even more important in a matter such as the present case when a respondent attempts to adversely change the workers’ compensation rights of current employees. There is no doubt based on petitioner’s credible testimony that his signature on the notice was neither a free nor informed decision. The notice cannot in any sense be considered a mutual agreement with petitioner. Moreover, had respondent taken any adverse action against petitioner, it would appear that petitioner would have had a cause of action under N.J.S.A. 34:15-39.1 for interference with petitioner’s workers’ compensation rights. The union agreement as a private contract also cannot be accepted as binding or allowing the loss of petitioner’s statutory rights and benefits under these circumstances.
3. Since the occupational exposure began prior to the attempted waiver or Article I election, Mr. Peck’s claims are reviewable in this court.
Under the R-1 Notice, it is provided that Article II rights are waived as to "any claims you may make for death or injury resulting from compensable occupational claims as of the date of signing." It is first noted that the petitioner’s dependents not petitioner would file any death or dependency claim in the event petitioner’s death is alleged to be causally related to his employment. Such dependents have not waived their rights, see Kibble, supra, and the R-1 notice might not be effective against them. Moreover, N.J.S.A. 34:15-34 and our courts have recognized that the period for filing an occupational claim does not run until two years after the date the worker knew the nature of the occupational disability and its relationship to employment. Earl v. Johnson and Johnson, 158 N.J. 155 (1999). This is particularly important in those situations concerning latent diseases such as cancers or asbestosis where the exposure period may have been years or decades prior to the manifestation of the occupational disease and/or disability. See, Falcon v. American Cyanamid, 221 N.J. Super. 252 (App. Div. 1989). Textileather, supra, a seminal occupational disability case whose language is still applicable to today’s workplace illnesses, held at 123:
It is a well-known fact that industrial diseases are gradual in
development--the first and early steps are not always perceptible. The
rate of progress may vary.... Sometimes that disease is quiescent and
latent; sometimes the fatal course is swift. Medical science cannot always
detect and describe the progress of disease.
See also, Electronic Associates, Inc. v. Heisinger, 111 N.J. Super. 15 (App. Div. 1970), which applies occupational disease filing standards in a carpal tunnel situation.
There is no dispute in the present matter that petitioner was exposed to occupational repetitive motions since the start of his employment for which his carpal tunnel claim petitions are based. Respondent apparently argues that since the carpal tunnel manifested after the waiver was first signed, the claims cannot be processed under Article II procedures. There is a clear potential for abuse in respondent’s position. For instance, under respondent’s view, employees who have been exposed to known carcinogens for many years but have not as yet manifested disease could have their workers’ compensation rights unilaterally terminated simply through an Article I selection by management. Similarly, an employer, prior to a plant or operations closing, could initiate a unilateral Article I selection and bar any occupational claims by the now displaced workers and their dependents under respondent’s interpretation. It is also noted that the respondent had a new waiver for each labor agreement and each specific waiver apparently ended with the life of the particular labor contract. Such a process by respondent of periodic Article I selections is clearly unreasonable in setting a workable system for occupational disease claims.
As previously noted, N.J.S.A. 34:15-9 was enacted prior to the inclusion of occupational claims in the workers’ compensation system and specifically provides that an Article I election must occur prior to an accident. Besides the other requirements for a valid Article I process, it is evident that with the inclusion of occupational claims in Article II, an Article I election must now also occur prior to occupational exposure rather than disease manifestation for the process to be valid.
4. Respondent’s waiver or Article I election is invalid since respondent failed to comply with N.J.S.A. 34:15-72.
N.J.S.A, 34:15-72 provides:
In like manner every employer except the state or a municipality,
county or school district who is now or hereafter becomes subject
to the provisions of article I of this chapter (Section 34:15-1 et seq.)
shall forthwith make sufficient provision for the complete payment
of any obligation which he may incur to an injured employee or his
administrators or next of kin under said article I of this chapter.
This statute requires that any employer that operates under Article I must have in place sufficient provisions to provide payments to any injured employee or, in the case of death, the employee’s administrator and/or dependents. Respondent attempted to establish compliance with this statute through the testimony of Mr. Starkes. However, it was clear from his presentation that respondent has not provided any additional or clear coverage for the mailer occupational claims it attempted to place under Article I. It is also recognized that the Uninsured Employer’s Fund, which, among other things, is the State agency that covers claims where there is a lack of or inadequate workers’ compensation insurance and has expertise on insurance compliance matters, has opined as an amicus that the policies at issue do not meet the Section 72 requirements.
Respondent only presented its overall parent company policies that make no special provisions for the mailers situation at issue. In particular, Mr. Starkes stated that section 3B of the policies introduced in evidence was applicable to mailer occupational claims although the section had no reference to such claims. Moreover, this section had dollar limits per claim and for overall claims. If a number of disability and/or dependency suits were filed, the 3B coverage limits could well be depleted. Although Mr. Starkes indicated that an excess policy was available, no such policy was presented at trial for review. Applicability of 3B to a mailer’s occupational petition is also doubtful. In fact, Mr. Starkes indicated that section 3B had only been utilized in his experience in products liability actions where respondent has been impleaded in a court action and not to employee suits..
Additionally, Mr. Starkes was unfamiliar with the underwriting processes applicable to the policies to determine if premium adjustments had been made to ensure coverage was being provided for mailer current or potential occupational claims. With respect to dependency actions, Mr. Starkes indicated that such claims would still be paid pursuant to the workers’ compensation 3A provisions. This testimony appears contrary to the position of respondent that the waiver notice would also remove occupational death claims from Article II coverage. It is evident that respondent is trying to utilize its longstanding and standard insurance policies of its parent company to now maintain that its coverage of the mailers complies with the N.J.S.A. 34-15-72 requirements. It is, however, clear that respondent has made no special or clear provisions for disability and dependency payments which would be necessary under this statute to support a valid waiver or Article I process.
The factual and legal issues presented in this case undermine respondent’s attempt to preclude workers’ compensation occupational claims by the mailers. It is difficult to understand how such a clear violation of the statutory framework and the legislative policy was implemented by this respondent and was also set forth in its collective bargaining agreements. Moreover, I believe from a management and business perspective that it is in the best interest of respondent, its insurance carrier and the employees and their bargaining representatives to end this selective and discriminatory exclusion of the mailers from workers’ compensation rights and benefits.
Since I have found that respondent has not established a valid and enforceable Article I selection for mailer occupational claims, the motion to dismiss petitioner’s claims is denied.