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ER Can Remove Safety Guard

State: NY

Removal of Safety Guard Not 'Substantially Certain' to Cause Harm:

An employer's deliberate act of dismantling safety features of a leather-stamping machine was not so substantially certain to result in injury as to exempt a worker who was injured by the machine from the exclusivity provisions of New Jersey's workers' compensation laws, a divided New York appellate court ruled.

Case: Lebron v. SML Veteran Leather, No. 308490/08, 08/20/2013, published.

Facts: Nelson Lebron worked for SML Veteran Leather. He suffered severe burns to his hand while using a hot leather-stamping machine.

The accident occurred when a piece of leather became stuck in the machine and Lebron reached in to extricate it.

The machine had originally been equipped with a safety guard, which would have prevented Lebron from inserting his hand so far into the machine, and a foot pedal, which would have had to be depressed for the machine to operate.

The safety gate, however, was apparently discarded when SML relocated its operations from New York to New Jersey in 2006. The foot pedal had also been taped down, so that a worker could activate the machine simply by passing a piece of leather over a sensor.

Procedural History: Lebron sought to sue SML civilly, and SML moved for the summary dismissal of his complaint on the basis of workers' compensation exclusivity.

Bronx County Supreme Court Justice Norma Ruiz denied SML's motion and SML appealed.

Analysis: The Appellate Division's 1st Department concluded that New Jersey's workers' compensation laws applied to this dispute. It explained that under New Jersey law, workers' compensation is the exclusive remedy of an injured worker unless there was conduct on the part of the employer that amounts to an "intentional wrong."

New Jersey's Supreme Court has defined an "intentional wrong" as conduct for which there is a "substantial certainty" that the employer's conduct will cause injury or death.

A majority of the court reasoned that SML's conduct did not rise to this level since there were no prior incidents or injuries caused by the machine Lebron had been using, no evidence of deliberate deceit or fraudulent conduct on the part of SML and no citations for any violations by the Occupational Safety and Health Administration before Lebron's accident.

The majority also pointed out that the accident would not have occurred if Lebron hadn't used his hand to get the piece of leather out. The evidence indicated that the normal procedure for SML employees using the machine during the 13 years SML had the machine was to use a long-handled brush or long-handled screwdriver to clear jams.

In fact, Lebron testified at his deposition that he had used a long-handled screwdriver through the years to clear jams in the machine, and one of Lebron's coworkers testified that she had been going to get a brush for him to use to clear the jam when the accident occurred.

Dissent: Judges Rolando T. Acosta and Sallie Manzanet-Daniels argued that they thought there was at least a triable issue of fact as to whether SML's removal of the safety features from the machine was "substantially certain" to result in injury.

Disposition: Reversed and remanded.

To read the decision, click here.

Source: WorkCompCentral

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