Not everyone’s job involves sitting behind a desk in front of a computer all day. Sometimes, workers have to deal with dangerous toxins as part of their workday. And if your employer isn’t up to date with safety regulations, there is a real danger of exposure in that worker’s future.
The risk is not limited to factories anymore. In New Jersey, workers in chemical plants alon
g the Delaware and Hudson River corridors, refinery operators, painters, auto body technicians, drycleaners, hairdressers, lab technicians, hospital workers handling sterilants and chemotherapy drugs, pesticide applicators, sanitation workers, firefighters, construction laborers working around silica and lead, and welders breathing manganese fumes all face daily exposure to substances that can cause harm over time. Even office workers can be exposed to mold, asbestos in older buildings, or fumes from new carpet installations and HVAC issues. The job titles that come with toxic exposure risk are broader than people realize.
Some chemicals produce immediate symptoms. Others produce no warning at all and only show up as illness decades later. Both situations are covered under New Jersey workers’ compensation law, but the cases are handled very differently and require different proof.
First, you need to know how these hazardous materials enter your body. There are four major entryways:
- Inhaling the substance
- Contact through the skin
- Ingesting or eating the substance
- Injecting the substance
Inhalation is the most common path. Vapors from solvents like benzene, toluene, methylene chloride, and xylene enter the lungs and pass into the bloodstream within seconds. Diesel exhaust, welding fumes, silica dust, isocyanates from spray paints and certain foam insulations, and asbestos fibers all travel the same route. Workers wearing dust masks rated only for nuisance dust may believe they are protected when they are not. A proper respirator must be matched to the specific substance and properly fitted.
Skin contact is more common than people assume. Solvents penetrate skin almost as readily as they enter the lungs. Chemicals that should not be handled with bare hands are routinely picked up because the right gloves are not available or because the gloves provided are the wrong material. Latex gloves do not protect against most solvents. Nitrile and butyl gloves protect against different substances. Workers should know which glove protects against the specific chemical they handle.
Ingestion happens when chemicals contaminate food and drink in the workplace, when workers eat without washing their hands properly, or when small particles are swallowed after being inhaled and cleared from the lungs. Lead and many heavy metals enter the body this way despite being primarily inhalation hazards.
Injection injuries from contaminated needles affect healthcare workers, laboratory staff, and sanitation crews who handle medical waste. They also include high-pressure injection injuries from grease guns and paint sprayers, which can drive chemicals deep into hand tissue and cause severe damage.
The U.S. Occupational Safety and Health Administration has established a set of regulations that protect employees from toxic exposure. Depending on what industry and/or what chemical you are handling, the agency has a list of regulations on how each substance should be handled during the course of your work. In addition to these regulations, all employees are required to be properly trained and have the proper protection such as respirators or clothing to have as little exposure as possible.
OSHA’s hazard communication standard requires employers to maintain Safety Data Sheets for every hazardous chemical in the workplace, label containers properly, train workers to read those labels and sheets, and develop a written hazard communication program. Workers have a legal right to see the Safety Data Sheet for any substance they work with. Asking for it is one of the simplest protective steps a worker can take. The SDS will tell you the chemical’s hazards, the symptoms of exposure, the protective equipment required, and what to do in an emergency.
Specific industries are governed by additional standards. Construction work involving lead, silica, asbestos, or hexavalent chromium has its own detailed regulations. Healthcare workers exposed to bloodborne pathogens fall under their own standard. Permit-required confined space entry, respiratory protection, hearing conservation, and personal protective equipment all have free-standing OSHA standards that may apply depending on the job.
Reporting an OSHA violation is something workers can do confidentially. Retaliation against a worker who files a safety complaint is itself illegal under both federal law and New Jersey law. Section 11(c) of the OSH Act and New Jersey’s Conscientious Employee Protection Act both provide remedies when a worker is fired, demoted, or harassed for raising safety concerns.
Yet employers are always looking to cut costs. And unfortunately, worker safety is sometimes thrown to the wayside in cost saving measures. This leads to a great chance of toxic exposure for the worker.
Immediate Steps After a Toxic Exposure Incident
The first priority after any exposure is medical treatment. Get to a doctor or emergency room as soon as possible, even if symptoms are mild. Many toxic exposures produce delayed symptoms, and the medical record created at the time of exposure is critical to any claim later. Tell the medical staff exactly what you were exposed to, in what concentration, for how long, and through what route. Bring the Safety Data Sheet for the chemical if you can. If you cannot, the employer should have provided one and a copy should be obtainable on request.
Notify your employer in writing as soon as possible. Verbal reports get forgotten or denied. A written notification creates a date-stamped record that the employer cannot dispute later. New Jersey workers’ compensation law requires notice to the employer within ninety days of the accident or, for occupational diseases, within ninety days of the worker discovering the connection between the disease and the work. Missing this deadline can be fatal to a claim. A written notice protects you regardless of when later legal issues arise.
Keep records of everything. Save the clothes you were wearing if they were contaminated, since they may need to be tested. Photograph the area where the exposure occurred and any spills, broken equipment, or missing safety gear. Get the names of any coworkers who witnessed the exposure. Write down what your supervisor said when you reported it. Preserve all medical records and bills. These materials are often the difference between a successful claim and a denied one.
So what happens if you are exposed to hazardous material at work? Just like any accident at work, workers compensation will cover your medical bills. However, there are exceptions to every rule and you may be able to recover for damages against a third party. However, this is a route that you don’t want to go alone. You should consult with an experienced toxic exposure attorney to see if you have a case.
How New Jersey Workers’ Compensation Handles Occupational Disease Claims
New Jersey workers’ compensation is governed by N.J.S.A. 34:15-1 and following. The statute provides four primary types of benefits to workers injured on the job. Medical benefits cover all reasonable and necessary medical treatment related to the injury, with no deductible or copay for the employee. Temporary disability benefits pay seventy percent of average weekly wages, subject to a statutory maximum, while the worker is unable to return to work. Permanent disability benefits compensate the worker for any permanent impairment that remains after treatment ends. Death benefits cover dependents in fatal cases.
Toxic exposure cases often involve occupational disease rather than a traumatic accident. Occupational disease claims have their own statute of limitations and notice requirements. The clock generally does not start running until the worker knew or should have known that the condition was related to work. For diseases with long latency periods, such as cancers from chemical exposure or chronic obstructive pulmonary disease from years of dust inhalation, this discovery rule can preserve claims that would otherwise be time-barred. The employer’s compensation carrier almost always challenges the discovery date, so documenting when symptoms began and when a physician first connected them to work is essential.
The treating physician in a workers’ compensation case is selected by the employer or the insurance carrier, not by the worker. This rule frustrates many injured workers who want to see their own doctor. A worker can disagree with the selected physician’s findings and ask for an independent medical evaluation through the Division of Workers’ Compensation. A skilled New Jersey Works Compensation Attorney will know when an IME is warranted and how to present competing medical evidence to a judge of compensation.
The exclusive remedy rule generally bars an injured worker from suing the employer directly. Workers’ compensation is the exclusive remedy against the employer in most cases. There is a narrow exception for “intentional wrong” under the Laidlow doctrine, which can apply when an employer knew with substantial certainty that an injury would occur and deliberately removed safety guards or concealed hazards. Intentional wrong claims are difficult to win, but they are not impossible when the evidence supports them.
When a Third Party May Be Responsible
The exclusive remedy rule applies only to the employer. It does not bar a lawsuit against a third party whose conduct contributed to the exposure. Third-party claims often produce far larger recoveries than the workers’ compensation case alone. Common third parties in toxic exposure cases include the manufacturer of the chemical if it was defective or carried inadequate warnings, the manufacturer of the protective equipment if the equipment failed, a contractor or subcontractor on a multi-employer worksite, the owner of the premises where the work was performed, or a maintenance company that improperly serviced the ventilation system.
A successful third-party claim allows recovery for pain and suffering, full lost wages without the workers’ compensation cap, and other damages that are not available under the compensation statute. The compensation carrier has a statutory lien on a portion of the third-party recovery, but the net to the worker is usually substantially higher than the workers’ compensation benefits alone.
Acute Exposure Compared to Long-Latency Illness
Acute exposure cases involve an identifiable incident. A drum tipped over. A pipe burst. A respirator failed. The worker reported symptoms the same day. These cases are usually straightforward to prove because the link between the exposure and the injury is clear in time. The fight is usually over the extent of the injury and the duration of disability.
Long-latency cases are harder. A welder who develops Parkinson’s-like symptoms thirty years after manganese exposure faces medical and legal questions that an acute case does not. The diagnostic workup is more complex. The medical literature must establish that the type and level of exposure can cause the disease the worker now has. Records from decades ago must be located. Coworkers from earlier jobs must be tracked down. These cases require attorneys who understand toxicology, industrial hygiene, and epidemiology in addition to the workers’ compensation statute.
Mesothelioma, lung cancer in non-smokers exposed to asbestos or radon, leukemia in workers exposed to benzene, bladder cancer in workers exposed to aromatic amines, and silicosis in workers exposed to crystalline silica dust are all classic long-latency conditions. Each has a body of medical literature and a track record of compensable claims when the exposure history is established.
Common Mistakes That Hurt Toxic Exposure Claims
Treating an exposure as minor and not reporting it is the most frequent mistake. A worker who shakes off a brief vapor exposure and goes home, then develops respiratory symptoms two weeks later, often finds the employer denying that the exposure ever occurred. A contemporaneous report protects against that argument.
Accepting the company doctor’s opinion at face value is another. The treating physician selected by the employer is often a competent doctor, but the assessment of work-relatedness sometimes leans in favor of the carrier. A worker has the right to question the diagnosis, request additional testing, and ultimately to obtain independent expert opinion through the workers’ compensation process.
Settling too early is a third. Toxic exposure injuries can evolve over time. A worker who settles based on what is known at six months may regret it when the condition worsens at two years. Permanent disability awards in New Jersey workers’ compensation account for the prognosis, but no settlement can cover diseases that have not yet manifested. Cases involving suspected long-latency conditions require special care to preserve future claims if symptoms develop.
Questions Workers Ask After an Exposure
Can I be fired for filing a workers’ compensation claim?
Retaliation against an employee for filing a workers’ compensation claim is prohibited under New Jersey law. A worker who is terminated, demoted, or harassed for exercising compensation rights has a separate cause of action against the employer under the Conscientious Employee Protection Act and case law developed around the workers’ compensation statute. Document any adverse treatment carefully and speak with an attorney.
What if I am undocumented?
New Jersey workers’ compensation benefits are available regardless of immigration status. The statute covers any worker injured in the course of employment in this state. Immigration status does not bar a claim, although it can affect certain types of damages and benefits in ways an attorney can explain.
What if my employer does not have workers’ compensation insurance?
Employers in New Jersey are legally required to carry workers’ compensation insurance or to qualify as self-insured. An employer who fails to maintain coverage can be sued directly by the injured worker and faces criminal penalties. The Uninsured Employers’ Fund administered by the state can also provide benefits when no coverage exists.
How long do I have to file?
For occupational disease claims, the formal claim petition must generally be filed within two years of the date the worker knew or should have known that the disease was related to work. Notice to the employer must be given within ninety days of that same triggering event. Different deadlines apply to different types of claims, so do not assume a particular case is timely or untimely without speaking to counsel.
If you are exposed to toxic chemicals while on the job and need assistance with your workers compensation claim, we can help. Contact the Law Offices of Anthony Carbone today for a free consultation on your case.