The Workers’ Compensation Perfume Case –
The Fragrant Aroma of a Just Result

A large amount of controversy has arisen over a workers’ compensation decision known as the “perfume case.” In Sexton vs. Cumberland County/Cumberland Manor the N.J. Appellate Court held that a worker was entitled to pursue workers’ compensation benefits because perfume exposure at work aggravated a pre-existing lung condition. Contrary to the opinion of some critics, the holding does not stink. The furor expressed by those opposed to the decision is based upon a fundamental misunderstanding of the principles of N.J. workers’ compensation law.

The N.J. workers’ compensation law was adopted in the 1911. It confiscated every worker’s right to sue his employer. The law deprives the worker and his family of the right to claim adequate compensation for work-related injury (for example, damages for pain and suffering, future wage loss, spousal claims for loss of society and services, loss of enjoyment of life damages, and the like). Instead, the worker was limited to three potential benefits: authorized medical treatment, temporary total disability, and permanent disability.

As a matter of law, the worker and his family lost the right to sue a grossly negligent or careless employer, even if that gross negligence or carelessness caused serious injury or death. Indeed, the workers’ compensation law confers immunity on the employer to an extreme degree. For example, if an employer negligently fails to maintain safety devices on a dangerous machine and that failure causes amputation of the worker’s arm, the employer’s exposure is limited to workers’ compensation benefits.

To make certain the scales of justice were more fairly balanced, the worker’s entitlement to workers’ compensation benefits was made less difficult. The worker only needs to prove that the injury “arose out of and during the course of employment.” The “arise out of” component simply means that the cause of the injury was “work connected,” i.e., the worker encountered the risk when engaged in rendering service to his/her employer. The “during course of employment” component is primarily a temporal and geographical concept focusing on if the worker had begun work on premises controlled by the employer.

In addition, because the law was tilted in favor of the negligent employer, workers’ compensation principles further provided that an employer “take an employee as the employer finds him or her.” This means that if an exposure at work aggravated a pre-existing condition of the worker, the worker was nevertheless entitled to workers’ compensation even though the prior medical condition predisposed that worker to suffer more serious medical consequences. As a matter of law, it makes no difference that a different worker, subject to the identical work exposure would incur no injury because that worker had no prior medical condition susceptible to aggravation by such exposure.

The sound reasoning of the Sexton opinion is more readily understood in this context. Mrs. Sexton, during her day at work, was subjected to three separate exposures to perfume sprayed by a coworker. Before that incident at work, the petitioner was routinely employed, was able to perform chores at work and at home, and led a normal life. After the work incident, Mrs. Sexton was repeatedly hospitalized and when discharged from a rehabilitation center weeks after the accident, she was oxygen-dependent. She could barely function. The perfume incident at work, which aggravated Mrs. Sexton’s pre-existing chronic obstructive pulmonary disease, was the “straw that broke the camel’s back.” The incident occurred because both she and her coworker were captives of their employment. She could not have avoided the three exposures on the same day. The contaminated air was a “condition of her employment.” The exposures occurred because of her employment. The debilitating effects of that exposure, the workers’ compensation law was designed to remedy, albeit in a limited fashion.

It must be repeated, a worker cannot sue his employer regardless of how grossly negligent the employer’s conduct or the severity of the worker’s injury. To make up for this immunity, the law requires that the employer accept the employee regardless of his/her pre-existing medical condition. The employer’s insurance company must pay for injuries that arise “out of and during the course of employment,” regardless of fault. Work aggravation of pre-existing medical conditions are protected by the limited remedies available under the workers’ compensation system.

It is hoped that having supplied this information, those opposed to Mrs. Sexton receiving benefits for her debilitating condition would be more tolerant and understanding. By its decision the Appellate Court simply reaffirmed the principles of workers’ compensation law and properly adjusted the scales of justice to protect the worker.

Please contact us at 856-686-3543 for a free consultation in the event you need legal advice involving a work related injury or occupational disease.

– Kenneth A. DiMuzio, Sr.