                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0242-18T2

MARGARET ALLEN,

          Plaintiff-Appellant,

v.

MB MUTUAL HOLDING
COMPANY, d/b/a MANASQUAN
BANK/MANASQUAN SAVINGS
BANK, JAMES VACARRO,
ROSEANNE JOHNSON, and
STEVE YAROSZ,

     Defendants-Respondents.
_______________________________

                    Argued May 8, 2019 - Decided June 6, 2019

                    Before Judges Nugent and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. L-0410-18.

                    Brian W. McAlindin argued the cause for appellant
                    (Bathgate, Wegener & Wolf, PC, attorneys; Brian W.
                    McAlindin, of counsel and on the briefs; Kyle R.
                    Tognan, on the briefs).
            Kenneth A. Rosenberg argued the cause for
            respondents (Fox Rothschild, LLP, attorneys; Kenneth
            A. Rosenberg, of counsel and on the brief; Asad Rizvi,
            on the brief).

PER CURIAM

      Plaintiff Margaret Allen appeals from an August 2, 2018 order dismissing

her second amended complaint against defendants, her co-workers, and

employer, for failure to state a personal injury claim pursuant to the Workers'

Compensation Act (Act), N.J.S.A. 34:15-1 to -142. We affirm.

      We take the following facts from plaintiff's second amended complaint.

Plaintiff worked as branch manager of the Manasquan Bank branch located in

Brick. Beginning in 2007, she submitted monthly property inspection reports

detailing problems with the building and deficiencies in its maintenance.

Specifically, plaintiff complained the building smelled like sitting water and

notified her superiors that water damage repairs were necessary. She asserted

the bank made improper repairs, which did not remedy the underlying problems

of water leaking into the building and alleged mold.

      Beginning in 2010, plaintiff claimed she suffered from seizures, sinus

infections, diabetes, aches and pains, fibromyalgia, headaches, memory loss,

and exhaustion. The symptoms purportedly worsened while she was at work.

She began consulting doctors in December 2010. In February 2016, each of

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                                       2
plaintiff's doctors advised her to cease working in an office contaminated with

mold.

        The same month, plaintiff met with James Vaccaro, the president of MB

Mutual, and Roseanne Johnson, a human resources representative, to discuss the

potential mold problem and her doctors' concerns. Plaintiff claimed Vaccaro

was uninterested in examining her medical records and questioned the motives

behind her claims. Vaccaro then inquired of Johnson, who confirmed there was

mold contamination. Johnson previously worked in accounting at the Brick

location and had been responsible for approving payments for prior mold

remediation efforts.

        A few days after the meeting, defendants engaged 20/20 Home Inspection

to perform a mold test of the building. The report noted "[m]olds are part of the

natural environment and are simple, microscopic organisms whose purpose is to

break down dead materials. Molds can be found on plants, dry leaves and about

every other organic material." It also stated "[m]old spores are present in

virtually all environments, both indoors and outdoors, with a few notable

exceptions such as industrial clean rooms and hospital organ transplant rooms."

        The report indicated "[a]n inside air sample was collected from [four]

interior areas and the crawlspace. The samples were sent to the laboratory for


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                                       3
analysis. The air samples collected from the crawlspace and [plaintiff']s office

have elevated spore concentrations or abnormal spore types present." However,

the report noted a "low" MoldSCORE for plaintiff's office, the teller's office, the

construction area, and the rear storage area and bathrooms. According to the

report, "[a] low MoldSCORE[] indicates the air sample did not detect, relative

to the outside air, the presence of indoor mold growth in this room at the time

of sampling."

      The only area receiving a "high" MoldSCORE was the crawlspace. The

report noted the existence of a ventilation system "that draws outside air into the

crawlspace." It further noted the system "appear[ed] to be potentially creating

positive pressure which [was] likely aiding the spread of mold spores to the rest

of the building and living spaces."

      The report recommended cleaning and remediation of mold found in the

crawlspace and any other areas where mold was present. The report stated:

            [o]ccupants and visitors should be restricted from the
            areas being cleaned and repaired. If there have been
            health complaints, the [c]lient / owner may want to have
            occupants in adjacent areas relocate if their concerns
            are reasonable. Vacating people from adjacent non-
            impacted spaces is generally not necessary if complete
            and proper procedures are followed.




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                                        4
The report recommended the ventilation system be replaced with "properly sized

dehumidifiers."

      The Brick branch continued operations after defendants received the

report and plaintiff returned to work. Defendants shut down an area of the

building designated for remediation and moved the employees who were

stationed there to plaintiff's side of the building.

      Plaintiff alleged her cognitive issues significantly worsened. She called

her son to pick her up from the office on several occasions because she

experienced severe dizziness and could not walk.         She also claimed she

developed a serious rash, which her doctors diagnosed as caused by exposure to

toxic mold spores. Plaintiff alleged she repeatedly informed defendants of the

severity of the mold issue and her increasing health problems.

      Defendants shut down the Brick branch one month after plaintiff's meeting

with Vaccaro. Plaintiff claimed this occurred after multiple employees became

ill. After the shutdown, plaintiff alleged defendants forced her to return to the

office on several occasions to retrieve files and materials from customer safety

deposit boxes. She alleged she informed defendants of her worsening health

condition and that her doctors had advised her not to return to the building, but

defendants stated they did not care and she needed to retrieve the items. She


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                                          5
further alleged defendants did not give her safety equipment when they ordered

her to return to the building and her symptoms were aggravated each time she

reentered the building.

      Plaintiff filed a three-count complaint alleging defendants had committed

an intentional wrong, an exception to the Act's exclusive remedy provision.

N.J.S.A. 34:15-8. Plaintiff also alleged fraudulent concealment and negligence.

She filed an amended complaint, which alleged she suffered from medical issues

because defendants intentionally concealed the mold and directed her to work

in the building, despite knowledge of the mold contamination and her medical

issues.

      After the amended complaint was dismissed for failure to state a claim,

plaintiff filed a second amended complaint. This complaint alleged additional

facts in support of her claims, and asserted a claim of willful and wanton

misconduct, rather than negligence. The motion judge dismissed the second

amended complaint for failure to state a claim and issued a written statement of

reasons.

      The judge found plaintiff had failed to allege sufficient facts to support a

claim defendants had committed an intentional wrong pursuant to N.J.S.A.

34:15-8. The judge stated:


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                                        6
Based on the facts [pled] in the [c]omplaint, [p]laintiff
has not demonstrated that [d]efendants acted with
"substantial certainty" that the mold would harm
employees. First, concerning [defendants'] conduct
. . . , the facts alleged do not appear to demonstrate
[d]efendants knew with "substantial certainty" that the
mold would cause death or injury. While the [c]ourt
acknowledges that [d]efendants knew of the mold as
early as 2006, by [p]laintiff's own statements the mold
was not officially linked with any health issues for
[p]laintiff until February 2016. Next, on February 12,
2016, a meeting was held to address the mold issue.
Eight days later, on February 20, 2016, an inspection
was undertaken by [d]efendants at the [b]ank. At some
point between February 20, 2016, and February 29,
2016, part of the [b]ank was closed for construction.
On March 11, 2016 the bank was closed
[altogether]. . . .

       Essentially in about a month's time of learning of
the serious nature of the mold contamination
[d]efendants, held a meeting, scheduled and completed
an inspection, moved employees, and then closed the
[b]ank for construction. This does not appear to be the
actions of an employer acting with substantial certainty
that their employees will be injured or die. In contrast,
it appears that [d]efendants are attempting to address
the mold issue and prevent further harm. At most,
[d]efendants tolerated the presence of mold for an
extended period of time and then took action once
serious medical illnesses were reported. This is not the
sort of conduct which rises to the level of intentional
wrong. Millison [v. E.I. Du Pont de Nemours & Co.],
101 N.J. [161, 181-82 (1985).] (There is a difference
between, on the one hand, tolerating in the workplace
conditions that will result in a certain number of
injuries or illnesses, and, on the other, actively
misleading the employees who have already fallen

                                                            A-0242-18T2
                           7
            victim to those risks of the workplace. An employer's
            fraudulent concealment of diseases already developed
            is not one of the risks an employee should have to
            assume). Certainly, there are no facts alleged which
            state [d]efendants somehow concealed the adverse
            impacts of the mold on [p]laintiff. Plaintiff claims the
            mold itself was concealed, but such concealment and
            exposure is explicitly covered by the [Worker's
            Compensation] Act. Id. at 188. In Millison's ultimate
            holding the [c]ourt unambiguously states "[a]s to so
            much of plaintiff's complaints as seek damages for
            deliberate exposure to asbestos and to the risks
            associated with that exposure, we hold that those claims
            are compensable exclusively under the Compensation
            Act." Ibid.

The judge concluded defendants directing plaintiff to enter the building without

safety equipment did not constitute an intentional wrong because "it is not

enough that [d]efendants understood there was a probability that [p]laintiff

would be injured by the mold, [d]efendants had to be certain that [p]laintiff

would be injured."

      The judge further stated:

                   Second, concerning the context prong, [p]laintiff
            does not plead sufficient facts . . . to demonstrate "the
            resulting injury and the circumstances of its infliction
            on the worker must be (a) more than a fact of life of
            industrial employment and (b) plainly beyond anything
            the Legislature intended the Worker's Compensation
            Act to immunize." Laidlow [v. Hariton Mach. Co.,
            Inc.,] 170 N.J. [602,] 617 [(2002)]. Mold and the
            accompanying illnesses are not beyond the intentions
            of the . . . Act, in the same way exposure to asbestos is

                                                                        A-0242-18T2
                                       8
            not beyond the intentions of the Act. In fact mold, that
            can be present in any building at any time, surely is a
            fact of industrial life meant to be immunized from suit
            by the . . . Act. Ibid. This does not rise to the abnormal
            levels of deceit and disregard for safety present in a
            case like Millison.

      The judge dismissed the complaint with prejudice for failure to plead

sufficient facts to support a finding of intentional wrong and dismissed the

remaining claims because the facts pled did not overcome the Act's exclusive

remedy bar. This appeal followed.

                                        I.

      Appellate review of a trial court's ruling on a motion to dismiss is de novo.

Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010). "A complaint

should be dismissed for failure to state a claim pursuant to Rule 4:6-2(e) only if

'the factual allegations are palpably insufficient to support a claim upon which

relief can be granted.'" Ibid. (quoting Rieder v. State Dep't of Transp., 221 N.J.

Super. 547, 552 (App. Div. 1987)). "This standard requires that 'the pleading

be searched in depth and with liberality to determine whether a cause of action

can be gleaned even from an obscure statement.'" Ibid. (quoting Seidenberg v.

Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002)).

      A motion to dismiss a complaint under Rule 4:6-2(e) "must be based on

the pleadings themselves." Roa v. Roa, 200 N.J. 555, 562 (2010). For purposes

                                                                           A-0242-18T2
                                        9
of the motion, the "complaint" includes the "'exhibits attached to the complaint,

matters of public record, and documents that form the basis of a claim.'" Banco

Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005) (quoting Lum v. Bank of

Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004)).

      Plaintiff argues the motion judge's determination that she failed to plead

sufficient facts to prove the substantial certainty test set forth in Millison was

error. She argues the second amended complaint satisfied Millison because

defendants had notice of the existence of mold in the office and her illness.

Plaintiff also argues the motion judge's incorrectly relied on Millison because

that case involved a summary judgment motion where the parties had engaged

in discovery. She asserts there was no opportunity for discovery to examine the

extent of defendants' knowledge of the mold contamination and her medical

condition.

                                       II.

             The Workers' Compensation Act reflects "a historic
             trade-off whereby employees relinquish[] their right to
             pursue common-law remedies in exchange for
             automatic entitlement to certain, but reduced, benefits
             whenever they suffer[] injuries by accident arising out
             of and in the course of employment." Stancil v. ACE,
             USA, 211 N.J. 276, 285 (2012) (quoting Millison v. E.I.
             du Pont de Nemours & Co., 101 N.J. 161, 174 (1985)).
             In essence, by virtue of accepting guaranteed benefits
             under the Act, "the employee agrees to forsake a tort

                                                                          A-0242-18T2
                                       10
            action against the employer." Ramos v. Browning
            Ferris Indus., Inc., 103 N.J. 177, 183 (1986) (citing
            Morris v. Hermann Forwarding Co., 18 N.J. 195, 197-
            98 (1955)). Therefore, subject to certain statutory
            exceptions, the Act provides the exclusive remedy for
            an employee who sustains a work-related injury to
            obtain relief from his employer. See Van Dunk v.
            Reckson Assocs. Realty Corp., 210 N.J. 449, 459
            (2012) ("The Act's exclusivity can be overcome if the
            case satisfies the statutory exception for an intentional
            wrong."); see also Laidlow v. Hariton Mach. Co., Inc.,
            170 N.J. 602, 611 (2002) (referring to N.J.S.A. 34:15-8
            as "the so-called exclusive remedy provision").

            [Caraballo v. City of Jersey City Police Dep't, 237 N.J.
            255, 264-65 (2019).]

      The Supreme Court first construed the intentional wrong exception under

the Act in Millison and held:

            [T]he statutory scheme contemplates that as many
            work-related disability claims as possible be processed
            exclusively within the Act. Moreover, if "intentional
            wrong" is interpreted too broadly, this single exception
            would swallow up the entire "exclusivity" provision of
            the Act, since virtually all employee accidents, injuries,
            and sicknesses are a result of the employer or a co-
            employee intentionally acting to do whatever it is that
            may or may not lead to eventual injury or disease.

            [Id. at 177.]

      The Court explained an employer's exposure of an employee to risk and

danger must be egregious and



                                                                         A-0242-18T2
                                       11
             the mere knowledge and appreciation of a risk—
             something short of substantial certainty—is not intent.
             The defendant who acts in the belief or consciousness
             that the act is causing an appreciable risk of harm to
             another may be negligent, and if the risk is great the
             conduct may be characterized as reckless or wanton,
             but it is not an intentional wrong.

             [Ibid. (citing W. Prosser and W. Keeton, The Law of
             Torts, § 8 at 36 (5th ed. 1984)).]

The Court concluded the employer must knowingly expose the employee to a

substantial certainty of injury, and the resulting injury must not be "a fact of life

of industrial employment" and must be plainly beyond anything the Legislature

intended the Act to immunize. Id. at 178-79.

      The Court examined the intentional wrong standard in Laidlow. There,

the employer disengaged a safety device for reasons of speed and efficiency.

170 N.J. at 606. The Court held the employer acted with knowledge that it was

substantially certain a worker would suffer an injury when the employer tied a

safety guard on a rolling mill, releasing it only when OSHA inspectors were

present, and where there had been several near accidents reported to the

employer. Id. at 620-22. The Court concluded an employee injury under such

circumstances would never constitute a fact of industrial life. Id. at 622.

      In Van Dunk, 210 N.J. at 474, the Court held the Act's exclusivity bar

applied even where the workplace accident produced a "willful violation of

                                                                             A-0242-18T2
                                        12
OSHA safety requirements." In that case, an employee entered an unsupported

trench to a depth beyond the reach of safety equipment and the trench collapsed

on him. Id. at 453-54.

      The Court held the OSHA violation and "[a] probability, or knowledge

that . . . injury or death 'could' result, is insufficient" evidence of an intentional

wrong. Id. at 470. Instead, the "intentional wrong must amount to a virtual

certainty that bodily injury or death will result." Ibid. Furthermore, the Court

observed that the "high threshold" of the context prong was not met by "the type

of mistaken judgment by the employer and ensuing employee accident that

occurred on [the] construction site[.]" Id. at 474.

      Therefore, the knowing failure to take safety precautions does not

constitute the type of egregious conduct associated with an intentional wrong.

An intentional wrong must be accompanied by something more, typically

deception, affirmative acts that defeat safety devices, or a willful failure to

remedy past violations. See Laidlow, 170 N.J. at 616 (quoting Millison, 101

N.J. at 179) (noting that the "mere toleration of workplace hazards 'will come

up short' of substantial certainty").         Absent such egregious conduct, the

employee is limited to the worker's compensation remedy.




                                                                              A-0242-18T2
                                         13
      Plaintiff claims defendants were aware of the mold contamination in the

office and her mold-exposure-related medical issues. She argues defendants

committed an intentional wrong by forcing her to work in the building despite

knowledge of her doctors' orders to cease working in proximity to mold.

However, plaintiff concedes her medical issues were not linked to mold

exposure in the Brick office until February 2016. Indeed, the mold inspection

report noted plaintiff's office had low mold contamination numbers. Further, as

defendants quickly engaged the services of an inspection company. Shortly after

the inspection, defendants closed a portion of the bank to remediate the mold

problems and ultimately closed the building altogether.

      Plaintiff's pleading asserts no facts to demonstrate defendants deliberately

deceived others regarding the condition of the workplace or employee illness,

removed safety devices which facilitated mold growth, or ignored prior injuries,

accidents, or employee complaints regarding a dangerous condition that was not

a part of ordinary industrial employment. Rather, plaintiff's second amended

complaint sounded in negligence alleging defendants failed to adequately

remediate the dangerous condition and ordered plaintiff to retrieve documents

from the building. The facts pled do not establish defendants acted with intent

to harm or substantial certainty their conduct would result in bodily injury or


                                                                          A-0242-18T2
                                      14
death. "[A] work-place injury caused by either gross negligence or an abysmal

lack of concern for the safety of employees" does not establish an intentional

wrong. See Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 72 (App. Div.

1997).

      Finally,

                   [t]he separate consideration required by the
            context prong [of the substantial certainty test] acts as
            an additional check against overcoming the statutory
            bar to a common-law tort action. It was added to the
            analysis to reinforce the strong legislative preference
            for the workers' compensation remedy. That preference
            is overcome only when it separately can be shown to
            the court, as the gatekeeper policing the Act's
            exclusivity requirement, that as a matter of law an
            employee's injury and the circumstances in which the
            injury is inflicted are "plainly beyond anything the
            [L]egislature could have contemplated as entitling the
            employee to recover only under the Compensation
            Act." Millison, 101 N.J. at 179. In Millison, that
            threshold was only met by virtue of the physicians'
            intentional deception about the true status of
            employees' medical conditions when returning the
            employees to the hazardous worksite, not by the
            dangers present in the workplace itself due to the
            known presence of asbestos. Id. at 181-83. Thus,
            Millison set a high threshold for the contextual
            analysis.

            [Van Dunk, 210 N.J. at 473-74.]

      The second amended complaint does not plead facts demonstrating

plaintiff's symptoms and exposure to mold were the product of intentional

                                                                        A-0242-18T2
                                      15
deception by defendants. Accepting, as we must, the facts alleged in the second

amended complaint as true, and interpreting them under the liberal standard

required when a court considers a dismissal motion under Rule 4:6-2(e), plaintiff

failed to satisfy the substantial certainty test to prove an intentional wrong to

overcome the Act's exclusive remedy bar.           Plaintiff's injuries, and the

circumstances in which she allegedly incurred them, were not beyond the scope

of the recovery envisioned by the Legislature in the Act. For these reasons,

dismissal of the second amended complaint was appropriate.

      Affirmed.




                                                                         A-0242-18T2
                                      16
