Williams v. Port Authority

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, 786 A.2d 114 (2001). In my view, that decision stands on well-settled legal principles governing jurisdiction.

I.

It is not at all unusual for more than one state to have an interest in a single compensation claim or for there to be a marked difference in the benefits available under the statutes of different states. Wilson v. Faull, 27 N.J. 105, 116-17, 141 A.2d 768 (1958) (recognizing that variety of circumstances could operate to provide more than one state with interest in redress of work-connected injury and application by either forum of its compensation law); see also Lex K. Larson & Arthur Larson, Workers’ Compensation Law: Cases, Materials, and Text, § 32.03 (3d ed.2000). So long as a state has more than a “casual” connection to the employment, it may apply its compensation law to the worker’s claim. Wenzel v. Zantop Air Transp., Inc., 94 N.J.Super. 326, 330-31, 228 A.2d 104 (Union County Ct.) (observing that, given liberal interpreta*94tion to coverage under workers’ compensation statute and expanded jurisdictional concepts of due process, when more than casual employment services were performed in New Jersey, it is appropriate forum for compensation action), aff'd o.b., 97 N.J.Super. 264, 235 A.2d 29 (App.Div.1967).

When an employee has a choice of forum, he or she is entitled to invoke the jurisdiction of the state providing “the highest available amount of compensation, ... consonant with the high-minded remedial purposes underlying compensation enactments.” Boyle v. G. & K. Trucking Co., 37 N.J. 104, 112, 179 A.2d 514 (1962). The state chosen need only be one appropriate forum, not the “only” one or even the “best” one. The sole inquiry' is whether the state has more than a casual connection to the employment.

Among the considerations we traditionally have recognized as relevant in determining whether a state’s interest is more than casual are those identified by Professor Larson as nearly universally accepted by our sister jurisdictions: the place of injury; the place of contract execution; the place where the employment relation is carried out; the place where the industry is localized; the place of the employee’s residence; and the law of the place on which the parties agreed. 9 Larson’s Workers’ Compensation Law § 142.01 at 142-2 (2000), cited with approval in Boyle, supra, 37 N.J. at 109, 179 A.2d 514. Of those indicators, Larson has said, “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.

Our case law essentially tracks the Larson principles:

Traditionally, an injury in New Jersey will trigger jurisdiction in the New Jersey compensation court. Boyle[, supra, 37 N.J. at 108, 179 A.2d 514]. So too where New Jersey is the place of the employment contract or hiring. Gotkin v. Weinberg, 2 N.J. 305, 307, 66 A.2d 438 (1949); Rivera v. Green Giant Co., 93 N.J.Super. 6, 11, 224 A.2d 505 (App.Div.1966), aff'd o.b., 50 N.J. 284, 234 A.2d 393 (1967). The employee’s New Jersey residency appears, as well, to be sufficient, Bunk v. Port Authority of New York and, New Jersey, 144 N.J. 176, 180-81, 676 A.2d 118 (1996), at least where there are also some employment contacts in New *95Jersey, Parks v. Johnson Motor Lines, 156 N.J.Super. 177, 180-81, 383 A.2d 734 (App.Div.1978); Beeny v. Teleconsult, Inc., [160 N.J.Super. 22, 27-28, 388 A.2d 1269 (App.Div.1978)].
[Connolly v. Port Auth., 317 N.J.Super. 315, 320, 722 A.2d 110 (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, 722 A.2d 110 (emphasis added). Indeed, localization was specifically considered in Phillips v. Oneida Motor Freight, Inc., 163 N.J.Super. 297, 303, 394 A.2d 891 (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.

II.

In light of those standards, it is clear that the Workers’ Compensation judge and the Appellate Division correctly assessed New Jersey’s interest in Williams’s employment as more than casual. The Appellate Division began its analysis by noting that the Port Authority is a bi-state agency of New York and New Jersey. As such, it is at least in part “localized” here. Lieberman v. Port Auth., 132 N.J. 76, 84, 622 A.2d 1295 (1993).

On the issue of place of injury, the Appellate Division stated:

Because it cannot be determined when during the period of exposure as a continuum, including the exposure on the bridge and at the New York airports, the pulmonary disease process commenced, we see no reason not to apply the rule we applied in Peck [v. Newark Morning Ledger, Co.,] 344 N.J.Super. 169, 781 A.2d 58 [ (App.Div.2001) ] ... namely that for all practical purposes, the commencement of a continuous period of exposure and the commencement of the disease process are simultaneous.
[Williams, supra, 345 N.J.Super. at 557, 786 A.2d 114.]

*96That principle is well established. See Owens-Illinois, Inc. v. United Ins. Co., 138 N.J. 437, 451, 650 A.2d 974 (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, 200 A.2d 322 (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, 786 A.2d 114. 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 track 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, veiy 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, 786 A.2d 114.]

*97Moreover, 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.

III.

The majority has set forth the requirement that:

*98[I]n order to invoke the jurisdiction of the [Workers’ Compensation] 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.
[Ante at 90, 813 A.2d at 536.]

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. at 311, 200 A.2d 322 (establishing standard for apportioning compensation liability for occupational exposure disease between successive employments or insurance coverages); Akef v. BASF Corp., 140 N.J. 408, 658 A.2d 1252 (1995) (determining which, among successive employers, was to be held liable for worker’s occupational disease); Giagnacovo v. Beggs Bros., 64 N.J. 32, 311 A.2d 745 (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. *99As 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.

For reversal and remandment — Chief Justice PORITZ and Justices COLEMAN, YERNIERO, LaVECCHIA and ALBIN — 5. For affirmance — Justices LONG and ZAZZALI — 2.