Does the supervisor’s initial statement constitute an intentional act of injury by the employer, thus removing the case from the limits set by the workers’ compensation statutes?

In a construction project, a company built an 18-foot-by-20-foot trench that had to be lined with a special fabric. When the workers had trouble stretching the fabric over the trench, an employee volunteered to go into the trench and fix the problem. His supervisor stopped him, saying it was too dangerous because the walls of the trench had not been properly supported. After several additional failed attempts to stretch the fabric, the supervisor relented and told the employee to go into the trench. Within five minutes, he was seriously injured when the trench collapsed. Does the supervisor’s initial statement constitute an intentional act of injury by the employer, thus removing the case from the limits set by the workers’ compensation statutes? Is it relevant to a jury’s decision if OSHA issues a citation for a willful violation in this case before it goes to trial? [Van Dunk v. Reckson Associates Realty Corp., Superior Court of NJ, Appellate Div., No. A-3548-08T2, August 30, 2010.]

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