Published October 1, 2026 · Morris Starkman
Understand what you traded away
New Jersey workers' compensation pays whether or not anyone was at fault. You give something up for that. Under N.J.S.A. 34:15-8, if an injury is compensable under the Act, no one "in the same employ as the person injured" can be sued at common law for it, "except for intentional wrong." Your employer is off limits. So is the foreman who waved you onto the deck.
What comp pays is real but narrow:
- Authorized medical treatment, with no deductible and no co-pay.
- Temporary disability at 70% of your average weekly wage, capped in 2026 at $1,199 a week (up from $1,159 in 2025, per the NJ Department of Labor).
- A permanency award at the end, if you are left with a measurable loss of function.
What comp does not pay: pain. Disfigurement as such. The life you had before. Your spouse's loss. Those are tort damages, and the comp court has no power to award them.
Count the companies on the site, not the people
A single floor of a job can hold a general contractor, six subs, a staffing agency, an equipment lessor, a crane company, a delivery driver and the owner of the building. Only one of them signs your check. The exclusive remedy bar protects that one. Everyone else is a third party, and if their negligence caused your injury you can sue them in Superior Court for full damages.
The ones worth looking at first:
- The general contractor, for site control, sequencing and safety.
- Another subcontractor — the one who left the opening uncovered, cut the bracing, or dropped the material.
- The property owner, where it retained control over the work.
- The manufacturer or lessor of the lift, saw, scaffold or ladder. New Jersey's Products Liability Act, N.J.S.A. 2A:58C-2, reaches a product that is not reasonably fit, suitable or safe because of a manufacturing defect, a design defect, or inadequate warnings.
- The driver, if you were struck by a vehicle on or near the site.
Check whether your employer carried insurance before you aim at the general contractor
There is a trap here. N.J.S.A. 34:15-79 provides that a contractor placing work with a subcontractor becomes liable for the compensation owed to the sub's employees if the sub failed to carry workers' compensation insurance. If your employer was uninsured and the general contractor ends up paying your comp, the general contractor may be treated as your employer for these purposes — and the same bar that protects your direct employer can be raised by the general. Find out who insured whom in week one, not in year two.
Do not assume an OSHA citation lets you sue your boss
It usually does not. The intentional wrong exception in 34:15-8 is narrow, and it has two parts. The conduct must show the employer knew injury was substantially certain — "the mere knowledge and appreciation of a risk," our Supreme Court has said, "is not intent" — and the injury and the circumstances must be plainly beyond anything the Legislature meant to cover.
- In Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002), the exception applied. The employer had kept a safety guard off a rolling mill for thirteen years, had seen two near-misses, had been warned three times by the plaintiff, and put the guard back on only when OSHA was coming.
- In Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449 (2012), it did not. A worker was buried in an unshored trench and OSHA issued a willful violation. The Court still held the claim barred, and held that a willful OSHA violation is not conclusive on the question of intentional wrong — it is one factor among the circumstances.
Treat an OSHA file as evidence for the third-party case. Do not treat it as a ticket past your employer's immunity.
Know that the comp carrier gets paid back out of the lawsuit
N.J.S.A. 34:15-40 governs. If the third-party recovery equals or exceeds the carrier's exposure, the carrier is reimbursed for the medical expenses and compensation it has already paid — but "less employee's expenses of suit and attorney's fee." The statute defines both: expenses of suit not in excess of $750, and an attorney's fee not in excess of 33 1/3% of the reimbursed portion. In practice the lien comes down by a third plus up to $750. If the recovery is less than the carrier's exposure, subsection (c) makes the carrier liable for the difference.
One more line in that section is worth your attention. Under subsection (f), if you have not settled or sued the third party within one year of the accident, the carrier may — ten days after a written demand on you — go settle or sue on its own, and its recovery bars yours.
Watch three clocks, not one
- Notice to the employer: fourteen days is clean. Beyond ninety days, under N.J.S.A. 34:15-17, "no compensation shall be allowed."
- Comp claim petition: two years from the accident, or two years from the last payment of compensation — N.J.S.A. 34:15-51.
- Third-party lawsuit: two years from the injury — N.J.S.A. 2A:14-2. Filing your comp claim does not stop this clock.
Do these things in the first week
- Report the injury in writing and keep your copy.
- Photograph the scene, the equipment, the serial plate, the ladder, the opening. A site looks different in forty-eight hours, and that is not a conspiracy — it is just construction.
- Write down every company name you can see: the sign at the gate, the hard hat stickers, the trucks, the lift's rental decal.
- Ask in writing that the equipment be preserved and not repaired or returned.
- Get the comp claim filed and have someone looking at the third-party case at the same time. They are different courts, different proofs and different deadlines, and they have to be run together.
At Starkman Firm you see the attorney, not a case manager. Call Cherry Hill at 856-424-7277 or Perth Amboy at 732-324-2011. There is no fee unless we recover for you, and we handle these cases in English and Spanish.
This article is general information about New Jersey law, not legal advice, and reading it does not create an attorney-client relationship. Every case turns on its own facts and its own deadlines. Talk to a lawyer about yours.