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FILE NAME: DuPont (DUP) DATE: 0000 DOC#: DUP164 DOCUMENT DESCRIPTION: Legal - Decision in Millison vs. DuPont, etc. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 1 Supreme Court of New Jersey. William B. MILLISON and Marie Millison, his wife; Vernon G. Kronmaier and Dorothy Kron- maier, his wife; Harold Schwebel and Susan Schwebel, his wife; Clarence Schwebel and Ger aldine Schwebel, his wife; Frank Baptiste and Cath erine Baptiste, his wife; and Edward B. Agar and Eileen Agar, his wife, Plaintiffs-Appellants, v. E.l. du PONT de NEMOURS & COMPANY; Wil liam E. Neeld, Jr., M.D.; G.F. Reichwein, M.D.; and Albinas Smulkstys, M.D., Defendants-Respondents, and Johns-Manville Corporation; Owens-Corning Fiber glass Corporation; Keene Corporation; Celotex Corporation; Raybestos-Manhattan Corporation; Sepco Corporation; Amatex Corporation; Phillip Carey Company; Limpet Corporation; H.J. Stein, M.D.; John Doe, M.D.; Richard Roe, M.D.; John Doe Corporation; and Richard Roe Corporation, Defendants. Evan TAYLOR and Rosina Taylor, his wife; Joseph J. Kuczmarski and Louise Kuczmarski, his wife; John Still and Anna L. Still, his wife; Louis Walat and Catherine Walat, his wife; Norris M. Hildebrand and Hilda Hildebrand, his wife; Pasquale S. Chilliri, Sr., and Mary Chilliri, his wife; Antonio DiPietro; Robert McKibbin and Anna McKibbin, his wife; Robert Tanner and Rose mary Tanner, his wife; Louis J. Kirsch and Edith Kirsch, his wife; Howard H. Amos and Ann Amos, his wife; Harold Knorr and Eleanor Knorr, his wife; George Sullivan and Pauline Sullivan, his wife; Louis P. Faverio and Dolores Faverio, his wife; Ar thur Kirner and Margery Kirner, his wife; Earl Stanton and Madeline Stanton, his wife; Daniel Mullen and Shirley Mullen, his wife; George Milton Gross and Alice M. Gross, his wife; Calvin R. Shaw and Dolores Shaw, his wife; Paul Donald Long and Grace Long, his wife; David Robert Ram sey and Virginia Ramsey, his wife; and Eugene Bleckley, Plaintiffs-Appellants, v. E.L du PONT de NEMOURS & COMPANY; Wil liam E. Neeld, Jr., M.D.; G.F. Reichwein, M.D.; and Albinas Smulkstys, M.D., Defendants-Respondents, and Johns-Manville Corporation; Owens-Corning Fiber glass Corporation; Keene Corporation; Celotex Corporation; Raybestos-Manhattan Corporation; Speco Corporation; Amatex Corporation; Phillip Carey Company; Limpet Corporation; H.J. Stein. M.D.; John Doe, M.D.; Richard Roe, M.D.; John Doe Corporation; and Richard Roe Corporation, Defendants. Emma F. GOLT, Administratrix ad Prosequendum and General Administratrix of James E. Golt; Marie M. Pollock, Executrix of the Estate of Manuel Pol lock; and Mary K. Ferretti, Executrix of the Estate of Levio P. Ferretti, deceased, Plaintiffs-Appellants, v. E.L du PONT de NEMOURS & COMPANY; Wil liam E. Neeld, Jr., M.D.; and G.F. Reichwein, M.D., Defendants-Respondents, and Johns-Manville Corporation; Owens-Corning Fiber glass Corporation; John Doe(s), M.D.; and John Doe Corporations (1-30), Defendants. John R. TAGGART and Eleanor Taggart, his wife, Plaintiffs-Appellants, v. E.L du PONT de NEMOURS & COMPANY; Wil liam E. Neeld, Jr., M.D.; and Albinas Smulkstys, M.D., Defendants-Respondents, and Johns-Manville Corporation; Owens-Corning Fiber glass Corporation; John Doe, M.D.; Richard Roe, M.D.; and John Doe Corporations (1-20), Defend ants. Orlando CAMELI and Ann, his wife, PlaintiffsAppellants, 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) page 2 v. E.I. du PONT de NEMOURS & COMPANY; G.F. Reichwein, M.D.; and Albinas Smulkstys, M.D., Defendants-Respondents, and Johns-Manville Corporation; Owens-Corning Fiber glass Corporation; Phillip Carey Company; United Asbestos & Rubber Co., d/b/a Unacro; John Doe, M.D.; Richard Roe, M.D.; and John Doe Corpora tions (1-20), Defendants. Argued April 2, 1984. Re-argued Sept. 10, 1984. Decided Dec. 10, 1985. SYNOPSIS Employees brought civil suits against employer and company physicians, asserting that defendants, with knowledge of adverse health consequences of as bestos use and exposure and as part of concerted plan for profit, deliberately exposed employees to dangerous work environment. Following remand, 91 N.J. 181, 450 A,2d 520, the Superior Court, Ap pellate Division, reversed denial of physicians' mo tion for summary judgment and affirmed judgment in favor of employer. On certification to the Appel late Division, the Supreme Court, Clifford, J., held that: (1) employees' initial resulting occupational diseases were not actionable in additional civil suit, but (2) allegations that defendants fraudulently con cealed knowledge of already contracted diseases stated distinct, actionable, civil claim. Affirmed in part, reversed in part and remanded. Handler, J., concurred in part and dissented in part and filed opinion in which O'Hem, J., joined in part. West Headnotes [1] Workers' Compensation 413 ^ 2 0 9 3 413 Workers' Compensation 413XX Effect of Act on Other Statutory or Com mon-Law Rights o f A ction and Defenses 413XX(Aj Between Employer and Employee 413XX(A)1 Exclusiveness of Remedies Afforded by Acts 413k2093 k. Willful or Deliberate Act or Negligence. Most Cited Cases Workers' Compensation 413 0 ^ 2 2 5 3 413 Workers' Compensation 413XX Effect of Act on Other Statutory or Common-Law Rights of Action and Defenses 413XX(D) Action Against Physician or Sur geon for Malpractice 413k2253 k. Rights of Employee or His Dependents. Most Cited Cases Although employees are limited to workers' com pensation benefits for any initial occupational dis ease disabilities related to hazards of their employ ment experience, Workers' Compensation Act [N.J.S.A. 34:15-1 to 34:15-128] does not bar cause of action for aggravation of such illnesses resulting from employers' and company physicians' fraudu lent concealment of already discovered disabilities. [2] Workers' Compensation 413 C^>2093 413 Workers' Compensation 413XX Effect of Act on Other Statutory or Common-Law Rights of Action and Defenses 4I3XX( A) Between Employer and Employee 413XX(A)1 Exclusiveness of Remedies Afforded by Acts 413k2093 k. Willful or Deliberate Act or Negligence. Most Cited Cases In determining level of risk exposure that will satis fy "intentional wrong" exception to exclusive rem edy provision of Workers' Compensation Act, N.J.S.A. 34:15-8, courts must examine not only conduct of employer, but also context in which such conduct takes place. [3] Workers' Compensation 413 0 ^ 2 0 9 3 413 Workers' Compensation 413XX Effect of Act on Other Statutory or Common-Law Rights of Action and Defenses 4I3XX(A) Between Employer and Employee 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 3 413XX(A)1 Exclusiveness of Remedies Afforded by Acts 413k2093 k. Willful or Deliberate Act or Negligence. Most Cited Cases Employers' mere knowledge and appreciation of risk, even strong probability of risk, is not "substantial certainty" needed to find intentional wrong resulting in avoidance of exclusive remedy provision of Workers' Compensation Act, N.J.S.A. 34:15-8. [4J Workers' Compensation 413 =>2084 413 Workers' Compensation 413XX Effect of Act on Other Statutory or Common-Law Rights of Action and Defenses 413XX(Aj Between Employer and Employee 413XX(A)1 Exclusiveness of Remedies Afforded by Acts 413k2084 k. In General. Most Cited Cases Employees' initial resulting asbestos-related occu pational diseases were type of hazard of employ ment that Legislature anticipated would be com pensable under terms of Workers' Compensation Act [N.J.S.A. 34:15-1 to 34:15-128] and not action able in additional civil suit. N.J.S.A. 34:15-8. [5] Constitutional Law 92 ==>2528 92 Constitutional Law 92XX Separation of Powers 92XX(C) Judicial Powers and Functions 92XX(C)2 Encroachment on Legislature 92k2499 Particular Issues and Applica tions 92k2528 k. Workers' Compensa tion. Most Cited Cases (Formerly 92k70.3(9.1), 92k70.3(9)) Policy arguments regarding any ineffectiveness in current workers' compensation system as way to ad dress problems of industrial diseases and accidents are within exclusive province of legislature. [6] Workers' Compensation 413 =>2093 413 Workers' Compensation 413XX Effect of Act on Other Statutory or Common-Law Rights of Action and Defenses 413XX(A) Between Employer and Employee 413XX(Ajl Exclusiveness of Remedies Afforded by Acts 413k2093 k. Willful or Deliberate Act or Negligence. Most Cited Cases Workers' Compensation 413 =>2253 4i 3 Workers' Compensation 413XX Effect of Act on Other Statutory or Common-Law Rights of Action and Defenses 413XX(D) Action Against Physician or Sur geon for Malpractice 413k2253 k. Rights of Employee or His Dependents. Most Cited Cases Allegations that employer and company physicians fraudulently concealed knowledge of already con tracted occupational diseases stated cause of action for aggravation of employees' illnesses, distinct from any claim, which would be cognizable only under Workers' Compensation Act [N.J.S.A. 34:15-1 to 34:15-128], for existence of initial dis ease. [7] Workers' Compensation 413 =>2093 413 Workers' Compensation 413XX Effect of Act on Other Statutory or Common-Law Rights of Action and Defenses 413XX(A) Between Employer and Employee 413XX(A)1 Exclusiveness of Remedies Afforded by Acts 413k2093 k. Willful or Deliberate Act or Negligence. Most Ciied Cases Workers' Compensation 413 =>2168 413 Workers' Compensation 413XX Effect of Act on Other Statutory or Common-Law Rights of Action and Defenses 413XX(C) Action Against Third Persons in General for Employee's Injury or Death 413XX(C)1 Right of Action of Employee 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 4 or Representative Generally 413k2160 What Persons Liable as Third Persons 413k2168 k. Co-Employee, or Agent or Officer of Employer of Injured Person. Most Cited Cases "Intentional wrong" exception of exclusive remedy provision of Workers' Compensation Act, N.J.S.A. 34:15-8, applies to employers as well as coemploy ees; and where employer is corporation, actions taken by certain corporate officers and supervisors are actions taken by corporate employer. [8| Workers' Compensation 413 ==>2093 413 Workers' Compensation 413XX Effect of Act on Other Statutory or Common-Law Rights of Action and Defenses 413XX(A) Between Employer and Employee 413XX(A)i Exclusiveness of Remedies Afforded by Acts 413k2093 k. Willful or Deliberate Act or Negligence. Most Cited Cases Injured employee may process workers' compensa tion claim without forfeiting opportunity to estab lish that he was injured as result of conduct that amounted to intentional wrong entitling him to damages beyond those available in workers' com pensation; overruling Seltzer v. Isaacson, 147 N.J.Super 308, 371 A.2d 304,N.J.S.A. 34:15-8. [9| Workers' Compensation 413 =>2248 413 Workers' Compensation 413XX Effect of Act on Other Statutory or Common-Law Rights of Action and Defenses 413XX(C) Action Against Third Persons in General for Employee's Injury or Death 413XX(C)7 Right to Proceeds of Action or Settlement 413k2248 k. In General. Most Cited Cases If injured employee processes workers' compensa tion claim and prevails in separate civil suit based on intentional wrong, he would not be entitled to keep entire amount of compensation award as well as civil suit remedy. N.J.S.A. 34:15-8, 34:15-40. **507 *165 David Jacoby, Haddonfield, for plaintiffs-appellants (Tomar, Parks, Seliger, Simonoff & Adourian, Haddonfield, attorneys; Willi am Tomar, Haddonfield, of counsel; James Katz, Haddonfield, on briefs). Thomas L. Morrissey, Newark, for defendants-respondents (Carpenter, Bennett & Morrissey, Ne wark, attorneys; Rosemary A. Hall, Newark, on briefs). Verice M. Mason, Asst. Deputy Public Advocate, for amicus curiae Public Advocate (Joseph H. Rodriguez, Public Advocate, attorney; Verice M. Mason and Michael L. Perlin, Sp. Counsel to the Com'r, Trenton, of counsel and on brief). Sebastian P. Lombardi, Short Hills, submitted a brief on behalf of amicus curiae Edwin Davis Mer rill, M.D., (Budd, Larner, Kent, Gross, Picillo & Rosenbaum, Short Hills, attorneys).David Jacoby argued the cause for appellants {Tomar, Parts, Seli ger, Simonoff & Adourian, attorneys; William To mar, of counsel; James Katz, on the briefs).Thomas L. Morrissey argued the cause for respondents {Carpenter, Bennett & Morrissey, attorneys; Rose mary A. Hall, on the briefs). Verice M. Mason, As sistant Deputy Public Advocate, argued the cause for amicus curiae Public Advocate {Joseph H. Rodriguez, Public Advocate, attorney; Verice M. Mason and Michael L. Perlin, Special Counsel to the Commissioner, of counsel and on the brief).bebastian P. Lombardi submitted a brief on behalf of amicus curiae Edwin Davis Merrill, M.D., {Budd, Larner, Kent, Gross, Picillo & Rosenbaum, attor neys). The opinion of the Court was delivered by CLIFFORD, J. [1] The New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (Compensation Act), con tains an exclusive-remedy provision in N.J.S.A. 34:15-8. The issue in these consolidated cases is whether that provision precludes employees who have suffered occupational diseases from maintain ing a separate tort action against their employer and 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161,501 A.2d 505) Page 5 against company physicians. The employees charge the employer and physicians with intentionally ex posing the employees to asbestos in the workplace, deliberately concealing from employees the risks of exposure to asbestos, and fraudulently concealing specific medical information obtained during em ployee physical examinations that reveal diseases already contracted by workmen. We hold *166 that although the employees are limited to workers' compensationbenefitsforanyinitial occupational-dis ease disabilities related to the hazards of their em ployment experience, the Compensation Act does not bar plaintiffs' cause of action for aggravation of those illnesses resulting from defendants' fraudulent concealment of already-discovered disabilities. I Plaintiffs are former E.I. du Pont de Nemours (du Pont) employees and their spouses (reference to plaintiffs henceforth is to the employees). Defend ants are du Pont and its company physicians who had worked at the du Pont plants at which plaintiffs-employees were stationed. Also named as defendants are certain manufacturers and suppliers of asbestos. Plaintiffs' claims against those defend ants are unaffected by the disposition of this appeal; therefore, all subsequent references to defendants**508 will include only du Pont and its company physicians. Five separate complaints were filed by different sets of plaintiffs. But for the identities and descrip tions of the plaintiffs, these complaints are identical in their basic allegations, and whatever differences there may be are irrelevant to our discussion. Plaintiffs' brief before this Court summarizes their claims as follows: The gravamen of the plaintiffs' claims [is] that du Pont and its doctors intentionally injured the plaintiffs by deliberately exposing them to asbes tos and aggravated these injuries by conspiring to [conceal] and fraudulently concealing from the plaintiffs knowledge of diseases known by these defendants to have been caused by asbestos ex posure and already contracted by the plaintiffs. Plaintiffs have suffered grievous and irreversible injuries both as a result of their initial exposure to asbestos and the failure of du Pont and its doctors to reveal diseases already contracted by the plaintiffs and known to the defendants. Defendants filed a motion for summary judgment in the Millison case and moved in the four companion matters to dismiss plaintiffs' complaints for failure to state a claim upon *167 which relief could be granted. Defendants' argument in support of their motions was that plaintiffs' exclusive remedy was recovery under the Compensation Act. The trial court consolidated all claims for the purpose of dis posing of the motions for dismissal. It originally denied the motions without prejudice and instructed plaintiffs to depose the defendants-physicians in or der to create a more complete factual record. When defendants later renewed their motions to dismiss, the trial court granted summary judgment to du Pont but refused to dismiss the claims against the company doctors. All parties sought interlocutory review in the Ap pellate Division, where their motions for leave to appeal were denied. Thereafter, we granted leave to appeal and summarily remanded the matter to the Appellate Division for consideration on the merits, 91 N.J. 181,450 A 2d 520 (1982). In an unreported opinion, the Appellate Division re versed the trial court's denial of the physicians' mo tion for summary judgment and affirmed the trial court's judgment in favor of du Pont. We granted plaintiffs' petition for certification, 94 N.J. 604, 468 A.2d 236 (] 982), and now affirm in part and reverse in part. II Under Rule 4:46-2 the court shall grant summary judgment if a discriminating search of the merits in 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 6 the pleadings, depositions, and admissions on file, together with the affidavits submitted on the mo tion, clearly shows that there is no genuine issue of material fact requiring disposition at a trial. Juclson v. Peoples Bank & Trust Co. o f Westfield, 17 N.J. 67, 74, 110 A 2d 24 (1954); see Robbins v. Jersey City, 23 N.J. 229, 240-41, 128 A 2d 673 (1957). It is with this standard in mind that we ex amine plaintiffs' specific allegations. Plaintiffs-employees are all past or present workers at defendant du Pont's Chamber Works or Repauno plants. Both plants are involved in the manufacture of chemicals; each contains an extensive amount of piping through its facilities. *168 As asbestos was often used for insulation purposes, the pipes in these plants were at one time surrounded by asbes tos. It is therefore reasonably inferable that certain employees at the Chamber Works and Repauno plants were exposed to the asbestos insulation and inhaled asbestos fibers. Defendants-physicians are Dr. W.E. Neeld, the medical director for the Chamber Works plant, and Drs. G.F. Reichwein and A. Smulkstys, former du Pont physicians at the Repauno plant. As medical director of Chamber Works, Dr. Neeld was required to supervise a medical staff of thirty-eight people responsible for meeting the health-care needs of the approximately 4,800 Chamber Works employees. The duties of Drs. Reichwein and Smulkstys,**509 as plant physicians, included examining and treat ing plant employees, providing physical examina tions, and being available for sick call and consulta tions. The thrust of plaintiffs' allegations is that there was something akin to a conspiratorial agreement between du Pont and its medical staff that resulted in harm to plaintiffs. They assert generally that de fendants, with knowledge of the adverse health consequences of asbestos use and exposure, and as part of a concerted plan for profit, deliberately ex posed the plaintiffs to a dangerous work environ ment. Their claims focus on two separate situations, however. The first count of the complaint avers that defend ants knew or should have known of the dangers as sociated with asbestos exposure, that they therefore had a duty to inform plaintiffs and to protect them from those dangers, but that they nonetheless acted intentionally to conceal from plaintiffs all informa tion regarding the health hazards of asbestos. In count two of their complaint, plaintiffs allege that du Pont and the company physicians fraudulently concealed from plaintiffs the fact that company medical examinations had revealed that certain plaintiffs-employees had contracted asbestos-re lated diseases. They assert that each year the du Pont doctors would give employees *169 complete physical examinations, including chest x-rays, pul monary function tests, electrocardiograms, urine analyse' s, and blood tests.FN1 Plain~tiffs contend that the results of these physical exams indicated that plaintiffs-employees had contracted serious pulmonary and respiratory abnormalities associated with exposure to asbestos. They further maintain that rather than provide medical treatment for these ailing employees, defendants fraudulently con cealed plaintiffs' asbestos-related diseases and sent them back into the workplace, where their initial in firmities were aggravated by additional exposure to asbestos. Plaintiffs claim that the time from defend ants' first knowledge of the employee's condition to the time when the employee was told of the danger was as long as eight years. FN1. Physical examinations were given bi annually for employees under age 40 and annually for employees 40 and older. Ill It is undisputed that plaintiffs' injuries, if proven, are compensable under the Compensation Act. The controversy presented, however, calls for a determ ination of whether the legislature intended that the Compensation Act should serve as a worker's sole and exclusive remedy under circumstances such as those alleged. The pertinent statute, N.J.S.A. 34:15-8, declares that when, by express or implied 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 7 agreement, the parties have accepted the provisions of the Compensation Act and the employee quali fies for benefits under the conditions of the Act, the employee shall ordinarily be barred from the pur suit of other remedies. As the statute expressly indicates, however, an exception to the exclusivity provision is available when plaintiffs can prove an "intentional wrong." FN2. Absent an express written statement to the contrary, NJ.S.A. 34:15-9 creates a presumption that the parties to every em ployment contract have agreed to be gov erned by the provisions of the Compensa tion Act. Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determina tion thereof *170 than as provided in this article and an acceptance of all the provisions of this art icle, and shall bind the employee and for com pensation for the employee's death shall bind the employee's personal representatives, surviving spouse and next of kin, as well as the employer, and those conducting the employer's business during bankruptcy or insolvency. If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such in jury or death for any act or omission occurring while **510 such person was in the same employ as the person injured or killed, except for inten tional wrong. [NJ.S.A. 34:15-8 (emphasis added).] Plaintiffs argue that their charges that defendants knowingly and deliberately exposed employees to a hazardous work environment and fraudulently con cealed existing occupational diseases are sufficient to fall within the Act's limited "intentional wrong" exception and to take their injuries outside the in tended scope of the Compensation Act. However, as noted by the Appellate Division in granting de fendants' motions to dismiss, in order to satisfy the Compensation Act's definition of "intentional wrong," claimants have heretofore been required to show a deliberate intention to injure. See, e.g., Bryan v. Jeffers, 103 N.J.Super. 522, 523-24, 248 ,4.2d 129 (App.Div.1968), certif. den., 53 N.J. 581, 252 A.2d 157 (1969) (intentional wrong in com pensation statute means "deliberate intention" and is not equatable with gross negligence or similar concepts importing constructive intent); Arcell v. Ashland Chem. Co., 152 N.J.Super. 471, 495-96, 378 A M 53 (Law Div.1977) (allegations of will fully and wantonly failing to undertake known safety and health procedures for protection of em ployees, and negotiating with governmental bodies so that contemplated implementation of such pro cedures would be ignored or delayed, are insuffi cient to satisfy intentional-wrong standard); Cope land v. Johns-Manville Prods. Corp.. 492 F.Supp. 498 (D.NJ.1980)(Bryan requires that "intentional wrong" exception be given a narrow construction; allegations that employer, aware of dangerous working conditions, maliciously and willfully ex posed workers to hazardous asbestos products and intentionally withheld information concerning the health risks do not meet the standard for intentional wrong); Petrusha v. Johns-Manville, 83 F.R.D. 39 (E.D.Pa.1979) (claims of intentionally allowing de fendant *171 to be exposed to asbestos and failing to warn of known health hazards of asbestos do not meet New Jersey Workers' Compensation Act's strict definition of intentional wrong, which re quires deliberate intention to injure). This require ment of proving actual intent to injure in order to avoid the exclusivity of a workers' compensation act is the subject of comment by Professor Larson in his multivolume treatise on Workers' Compensa tion Law: Even if the alleged conduct goes beyond aggrav ated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, willfully failing to furnish a safe place to work, or even willfully and 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of accidental character. If these decisions seem rather strict, one must remind oneself that what is being tested here is not the degree of gravity or depravity of the em ployer's conduct, but rather the narrow issue of intentional versus accidental quality of the pre cise event producing injury. The intentional re moval of a safety device or toleration of a dan gerous condition may or may not set the stage for an accidental injury later. But in any normal use of the words, it cannot be said, if such an injury does happen, that this was deliberate infliction of harm comparable to an intentional left jab to the chin. [2A A. Larson, The Law o f Workmen's Com pensation, 68.13 at 13-22 to 13-27 (1983) (footnotes omitted).] The approach explicated by Professor Larson em phasizes the narrow or limited character of the ex ception. See Copeland v. Johns-Manville Prods, Corp., supra, 492 F.Supp. at 501; see also Service Armament v. Hyland, 70 N.J. 550, 558-59, 362 A.2d 13 (1976) (stating general principle that exceptions in a legislative enactment are to be strictly but reas onably construed, consistent with the manifest reas on and purpose of the law). The approach of con struing and applying the exception in the most lim ited fashion consistent with the **511 purpose of the law is followed by the vast majority o f jurisdic tions that have considered whether allegedly egre gious employer conduct warrants the recognition of a separate cause of action outside the compensation system. See, e.g,, Burke v. Interlake, Inc., 600 F.Supp. 59 (D.Conn.1984) (allegations of willful, wanton, and intentional *172 failure to warn of dangers in conveyor system, failure to install ad equate safety equipment, and failure to comply with state and federal safety laws-workers' compensation is exclusive remedy); Shearer v. Homestake Min ing Co., 557 F.Supp. 549 (D.S.D.l 983), affd, 111 L. 2d 707 (8th Cir. 1984) (allegations of creating and maintaining an unsafe workplace, deliberately viol ating government safety standards, or personal an imosity of a supervisor were insufficient to state a cause of action under the "intentional tort" excep tion to compensation exclusivity); Prescott v United Slates. 523 F.Supp. 918 (D.Nev.1981), affd, 731 F.2d 1388 (9th Cir.1984) (willful intent to send employee into test areas immediately after nuclear detonations to perform his job is not the same as intent to make workers sick; Nevada law would require exclusive remedy in state Occupa tional Disease Act); Houston v. Bechtel Assocs., Professional Corp., 522 F.Supp. 1094 (D.D.C.1981) (Longshoremen's and Harbor Work ers' Compensation Act is exclusive remedy of em ployees suffering from silicosis who allege employ er willfully exposed them to unreasonably high levels of silica dust in violation of safety regula tions); Tysenn v. Johns-Manville Corp., 517 F.Supp. 1290 (E.D.Pa.1981) (knowingly and delib erately exposing employees to dangers of asbestos compensable exclusively in Occupational Disease Act); Phifer v. Union Carbide Corp., 492 F.Supp. 483 (E.D.Ark.1980) (exclusive remedy of plant chemist injured by exposure to harmful chemicals was workers' compensation regardless of employ er's intentional failure to warn of known hazards, failure to provide protective gear, and failure to provide adequate ventilation in the workplace); Kofron v. Amoco Chems. Corp., 441 A.2d 226 (Del. 1982) (no separate cause of action allowed when employer knew of dangers of asbestos, yet deceived plaintiffs by asserting that it was safe to work in close proximity to asbestos materials); Blade v. Anaconda Aluminum Co., Inc., 452 N.E.ld 1036 (lnd.Ct.App.1983) (even assuming employer intentionally pursued a course of conduct that jeopardized workers' safety, nevertheless the conduct can be characterized at most as grossly *173 negligent or wanton; exclusive remedy is workers' compensation). But see Boudeloche v. Grow Chem. Coatings Corp., 728F.2d 759 (5th Cir.1984) (pleading alleging that supervisor ordered employee to continue painting interior of tank des 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 9 pite fact that toxic fumes had caused employee to become dizzy and to vomit blood was sufficient to state claim under "intentional act" exception to ex clusivity of compensation act); Blankenship v. Cin cinnati Milacron Chetns., Inc., 69 Ohio St.2d 608, 433 N.E.2d 512,cert, denied, 459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.l 110 (1982) (intentional torts of employer are not immunized by compensation act; allegations of employer willfully disregarding known health hazards of noxious chemicals in the workplace were sufficient to withstand motion to dismiss under "intentional tort" exception to ex clusivity of workers' compensation act). See gener ally 2A A. Larson, supra,, at 68.13 (collecting cases); Annoi, 96 ,4.X./?.3d 1064 (1980) (same). That the foregoing authorities do not, as the dissent so forcefully points out, post at 520-522, enjoy a ri gid consistency in their various treatments of the "intentional wrong" test is clear; what is equally clear is that although different jurisdictions may craft different formulations, whatever formulation is used represents a conscious effort to impose severe restrictions on the exception, bringing it as close to "subjective desire to injure" as the nuances of language will permit, while at the same time re cognizing the problems of proof inherent in any at tempt to demonstrate subjective intent. **512IV In determining whether these plaintiffs have stated a cause of action under the "intentional wrong" ex ception to the exclusive-remedy provision of the Compensation Act we must be faithful to the legis lative goals of the workers' compensation system. To the end that the system and those goals may be fully understood, we pause to focus on the develop ment of the Compensation Act and the underlying premises that support it. *174 The stimulus for workers' compensation legis lation arose out of an increasing number of industri al accidents and the inadequacies of the commonlaw tort remedies that were available to aid injured workers. 1 A. Larson, supra, 4.00 at 23. Injured employees seeking tort recovery were confronted with the difficult task of persuading nonunion coworker-witnesses to testify against the employer. Even if successful at gathering witnesses, plaintiffsemployees were inevitably confronted with the "unholy trinity" of employer defenses-contributory negligence, assumption of risk, and the fellow ser vant rule-which served to protect the employer from legal liability even though he had failed in his duty as master to protect his servants. W. Prosser and W. Keeton, The Law o f Torts, 80 at 569 (5th ed. 1984). Thus, various authorities have estimated that at common law up to 94% of industrial acci dents went uncompensated. Id. at 572 n. 43. In 1911, in response to these common-law inequit ies, the legislature passed our Workers' Compensa tion Act. L. 1911, c. 95. This legislation involved a historic trade-off whereby employees relinquished their right to pursue common-law remedies in ex change for automatic entitlement to certain, but re duced, benefits whenever they suffered injuries by accident arising out of and in the course of employ ment. Thus the quid pro quo anticipated by the Act was that employees would receive assurance of rel atively swift and certain compensation payments, but would relinquish their rights to pursue a poten tially larger recovery in a common-law action. However, claimants suffering from work-related occupational diseases were initially unsuccessful in their efforts to recover compensation under the Act because it could not be proved that they had been injured by "accident"-the operative term permitting recovery under the statute. See Hichens v. Magnus Metal Co., 35 N.J.L.J. 327 (1912), in which a fact ory employee suffering from copper poisoning caused by inhaling copper dust was denied com pensation under the 1911 Act. Thereafter, the legis lature, apparently recognizing that workers who had contracted *175 diseases due to gradual exposure to certain potentially-hazardous working conditions were no less in need of the Compensation Act's pro tection than were employees injured by "accident," amended the Act to include occupational diseases 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N J. 161, 501 A.2d 505) Page 10 within its coverage. L. 1924, c. 124. Initially, only nine named occupational diseases were compensable under the terms of the Act: an thrax, lead poisoning, mercury poisoning, arsenic poisoning, phosphorus poisoning, all homologues and derivatives of benzine, wood alcohol poisoning, poisoning from chrome poisoning, and caisson disease. The right to compensation was conditioned on the employee notifying the employ er of his disability due to occupational disease with in five months of his last exposure to the harmful substances. In order to make additional occupation al diseases compensable, the legislature passed various amendments over the years: L. 1926, c. 31 (mesothorium or radium necrosis); L. 1931, c. 33 (radium poisoning); L. 1945, c. 53 (dermatitis ven enata). Moreover, a totally separate system of elective compensation was enacted for the diseases of asbestosis and silicosis. L. 1944, c. 88, codified at N.J.S.A. 34:15-35.1 to -35.9. Compensation was to be awarded for death or total disability resulting from silicosis or asbestosis when "the disease was due to the nature o f ' the employment, id. at 3, 34:15-35.3, and the Act specifically**513 indicated that there shall be no liability in tort for damages on account of death or total disability from silicosis or asbestosis. Id. at 5, 34:15-35.5. This separate system of compensation was repealed at L. 1951, c. 59, and asbestosis and silicosis were implicitly re turned to the general occupational-disease cover age, which had since replaced its limited list of spe cific-named occupational diseases with a definition al phrase, "compensable occupational disease." L. 1949, c. 29. The current definition of "compensable occupational disease" is codified at N.J.S.A. 34:15-31. The point to be emphasized is that the express in clusion of occupational diseases as part of the Com pensation Act reflects *176 a general awareness of potentially-hazardous conditions in the workplace that may result in debilitating diseases necessitating compensation. Early versions of the Compensation Act relating to occupational diseases indicate that certain defined workplace diseases, i.e.,asbestosis, are known to be an enemy of the workman, and that relief is to be awarded under the Act to employees stricken with these illnesses. In addition, the current statutory approach of providing only a general com pensable occupational-disease definition rather than listing the specific compensable illnesses suggests either that the occupational-disease risks of the workplace are too numerous to list separately or that in the future employees may contract occupa tional diseases, as yet unknown, that should non etheless be compensated under the terms of the Act (if such illnesses can be proven and their causes can be traced to conditions of employment). Suffice it to say that in revamping the Compensation Act over the years, the legislature has not been blind to the fact that each year an unspecified number of work ers will be disabled with diseases contracted as a result of the hazards of the workplace. V Mindful of the origins of the Compensation Act and its subsequent development, we turn to the precise legal issue posed by this appeal: what categories of employer conduct will be sufficiently flagrant so as to constitute an "intentional wrong," thereby en titling a plaintiff to avoid the "exclusivity" bar of N.J.S.A 34:15-8? Plaintiffs contend that du Pont and the doctors, in exposing the employees to as bestos and concealing medical information, acted knowingly and deliberately, not accidentally or negligently, so that defendants' conduct must be considered an "intentional wrong" within the mean ing of the statute. Defendants, relying on the bulk of the authority on this topic, conversely assert that only conduct amounting to actual intent to injure employees will be sufficient to qualify as an "intentional wrong" in the context of a workers' compensation *177 statute, and that the plaintiffs' complaints fall short of alleging "deliberate inflic tion of harm comparable to an intentional left jab to the chin." 1AA. Larson, supra, 68.13 at 13-27. 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 11 Although we are certain that the legislature could not have intended that the system of workers' com pensation would insulate actors from liability out side the boundaries of the Act for all willful and flagrant misconduct short of deliberate assault and battery, we are equally sure that the statutory scheme contemplates that as many work-related disability claims as possible be processed exclus ively within the Act. Moreover, if "intentional wrong" is interpreted too broadly, this single excep tion would swallow up the entire "exclusivity" pro vision of the Act, since virtually all employee acci dents, 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 even tual injury or disease. Thus in setting an appropriate standard by which to measure an "intentional wrong," we are careful to keep an eye fixed on the obvious: the system of workers' compensation con fronts head-on the unpleasant, even harsh, realitybut a reality nevertheless-that industry knowingly exposes workers to the risks of injury and disease. **514 The essential question therefore becomes what level of risk-exposure is so egregious as to constitute an "intentional wrong." We are confidentthatthe quidpro quo ofworkers' compensation-em ployer makes swift and certain payment without re gard to his own fault in exchange for immunity from liability at law-can best be preserved by ap plying the "intent" analysis of Dean Prosser to de termine what is an "intentional wrong" within the meaning of the Act. According to Prosser, the mere knowledge and appreciation of a risk something short of substantial certainty-is not in tent. The defendant who acts in the belief or con sciousness 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. [W. Prosser and W. Keeton, supra, 8 at 36.] *178 See also Restatement 2d o f Tons, 8A (meaning of intent is that actor desires to cause consequences of his act or is substantially certain that such consequences will result from his ac tions). In adopting a "substantial certainty" standard, we acknowledge that every undertaking, particularly certain business judgments, involve some risk, but that willful employer misconduct was not meant to go undeterred. The distinctions between negligence, recklessness, and intent are obviously matters of degree, albeit subtle ones, as the thoughtful dissent so powerfully points out. In light of the legislative inclusion of occupational diseases within the cover age of the Compensation Act, however, the divid ing line between negligent or reckless conduct on the one hand and intentional wrong on the other must be drawn with caution, so that the statutory framework of the Act is not circumvented simply because a known risk later blossoms into reality. We must demand a virtual certainty. See Blanken ship, supra, 433 N.E.2& at 581 (Locher, J., concur ring); cf. Restatement 2d o f Torts 500, comment (f), differentiating reckless misconduct from inten tional wrongdoing ("strong probability" is a differ ent thing from the "substantial certainty" without which an actor cannot be said to intend the harm that his act produces). It may help to perceive "substantial certainty" not so much as a substantive test itself nor as a substitute for a subjective desire to injure, as a specie of evidence that will satisfy the requirement of cases such as Bryan v. Jeffers, supra, 103 N.J.Super. at 523-24, 248 A 2d 129, that "deliberate intention" be shown. Contrary to the dissent's suggestion, post at 521 n. 1, we do not, by today's decision, repudiate earlier decisions in this area represented by Bryan and Arcell v. Ashland Chem. Co., supra, 152 N.J.Super. at 495-96, 378 A.2d 53; rather, we see our determination as a lo gical development in this sensitive field of the law. [2] There is another significant component to the level of risk exposure that will satisfy the "intentional wrong" exception. *179 Courts must examine not only the conduct of the employer, but 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 12 also the context in which that conduct takes place: may the resulting injury or disease, and the circum stances in which it is inflicted on the worker, fairly be viewed as a fact of life of industrial employ ment, or is it rather plainly beyond anything the le gislature could have contemplated as entitling the employee to recover only under the Compensation Act? [3][4] Examining the allegations in these cases in light of the foregoing principles, we conclude that count one of plaintiffs' complaints seeking damages beyond those available through workers' compensa tion for their initial work-related occupational dis eases must fall. Although defendants' conduct in knowingly exposing plaintiffs to asbestos clearly amounts to deliberately taking risks with employ ees' health, as we have observed heretofore the mere knowledge and appreciation of a risk-even the strong probability of a risk-will come up short of the "substantial certainty" needed to find an inten tional **515 wrong resulting in avoidance of the exclusive-remedy bar of the compensation statute. In the face of the legislature's awareness of occupa tional diseases as a fact of industrial employment, we are constrained to conclude that plaintiffs-employees' initial resulting occupational diseases must be considered the type of hazard of employment that the legislature anticipated would be compens able under the terms of the Compensation Act and not actionable in an additional civil suit. }5] We acknowledge a certain anomaly in the no tion that employees who are severely ill as a result of their exposure to asbestos in their place of em ployment are forced to accept the limited benefits available to them through the Compensation Act. Despite the fact that the current system sometimes provides what seems to be, and at times doubtless is, a less-than-adequate remedy to those who have been disabled on the job, all policy arguments re garding any ineffectiveness in the current compens ation system as a way to address the problems *180 of industrial diseases and accidents are within the exclusive province of the legislature. That body has not ignored the pervasive problem of hazardous substances in the workplace and com munity. In 1983 the legislature enacted the "Worker and Community Right to Know" Act, L. 1983, c. 315, codified at NJ.S.A. 34:5A-1 to -31, effective August 29, 1984, sparked in part by the conclusion that "individuals have an inherent right to know the full range of the risks they face so that they can make reasoned decisions and take informed action concerning their employment and their living con ditions." The Act imposes disclosure require ments on employers within the manufacturing sec tor and outside the manufacturing sector in respect of both "workplace" and "environmental" sub stances. Under the Act every employer, as defined by the Act, must establish an educational and train ing program for his employees, designed FN3. A New Jersey federal district court ruled that the entire "Right to Know" Act as applied to employers and workers in the manufacturing sector was preempted by the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-78 (1982), and OSHA's Hazard Communication Standard, 29 C.F.R. 1900.1200 (1984); the "Right to Know" Act as applied to employers not in the manufacturing sector was held not to be preempted, however. New Jersey State Chamber o f Commerce v. Hughey, 600 F.Supp. 606 (D.N.J.1985). On appeal, a Third Circuit panel, per Judge Gibbons, af firmed the District Court's conclusion that "the specific sections of the Right to Know Act directed to the identification and dis closure of work place hazardous sub stances, are preempted to the manufactur ing sector of the federal Hazard Commu nication Standard." New Jersey State Chamber o f Commerce v. Hughey, 774 F.2d 587, 598 (1985). The Court of Ap peals affirmed all the other aspects of the District Court's ruling except for its con clusion that the provisions of the "Right to Know" Act pertaining to the identification 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 13 and disclosure of environmental hazardous substances were unseverable and thus preempted. Although under this decision the portions of the "Right to Know Act applicable to this case are preempted, the Act nevertheless remains as an exposition of state public policy on these issues. to inform employees in writing and orally of the nature of the hazardous substances to which they are exposed in the course of their employment and the potential health risks which the hazardous substance pose, and to train them in the proper and safe procedures for handling the hazardous substances under all circumstances. [N.J.S.A. 34:5A-I3.j *181 Moreover, any employee is entitled to a copy of a workplace survey, hazardous substance fact sheet, or, where applicable, an environmental sur vey filed pursuant to the provisions of the Act for the facility at which he is employed. N.J.S.A. 34:5A-16. The statute gives the Superior Court jur isdiction over civil actions in law or equity, which any person may bring against "any employer for a violation of any provision of [the Act] or any rule and regulation promulgated pursuant thereto or against the Departments of Environmental Protec tion or Health for failure to enforce the Act. N J S .A . 34:5A-23. The Commissioners of the fore going Departments are given broad enforcement powers, including the imposition**516 of substan tial penalties. N.J.S.A. 34:5A-31. We conclude, therefore, that the legislature must have made a studied decision to address the prob lems associated with hazardous substances in the workplace in some manner other than simply ex panding the system of workers compensation. Surely that legislative determination was a reason able one. Despite the fact that in some instances it is an obviously unattractive solution to preclude workers such as are represented by the plaintiffs be fore us from suing at common law for full repara tion for their initial illnesses, the express terms and underlying purposes of the Compensation Act com pel that result. In the absence of constitutional de fects we must enforce the legislative will. Count one of plaintiffs' complaints was properly dis missed. Plaintiffs have, however, pleaded a valid cause of action for aggravation of their initial occupational diseases under the second count of their complaints. Count two alleges that in order to prevent employ ees from leaving the workforce, defendants fraudu lently concealed from plaintiffs the fact that they were suffering from asbestos-related diseases, thereby delaying their treatment and aggravating their existing illnesses. As noted earlier, du Pont's medical staff provides company employees with physical examinations as part of its package of medical *182 services. Plaintiffs contend that al though plaintiffs' physical examinations revealed changes in chest x-rays indicating asbestos-related injuries, du Pont's doctors did not inform plaintiffs of their sicknesses, but instead told them that their health was fine and sent them back to work under the same hazardous conditions that had caused the initial injuries. [6] These allegations go well beyond failing to warn of potentially-dangerous conditions or inten tionally exposing workers to the risks of disease. There is a difference between, on the one hand, tol erating 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 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. Such intentionally-deceitful action goes beyond the bargain struck by the Compensation Act. But for defend ants' corporate strategy of concealing diseases dis covered in company physical examinations, plaintiffs would have minimized the dangers to their health. Instead, plaintiffs were deceived-or so they charge-by corporate doctors who held them selves out as acting in plaintiffs' best interests. The 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 14 legislature, in passing the Compensation Act, could not have intended to insulate such conduct from tort liability. We therefore conclude that plaintiffs' al legations that defendants fraudulently concealed knowledge of already-contracted diseases are suffi cient to state a cause of action for aggravation of plaintiffs' illnesses, as distinct from any claim for the existence of the initial disease, which is cogniz able only under the Compensation Act. This approach of allowing plaintiffs to bring suit for aggravation of original diseases as a result of company physicians' fraudulent concealment of ex isting pulmonary diseases has been adopted by the California Supreme Court in Johns-Manville Prods. Corp. v. Contra Costa Superior Court, 27 Cal.3d 465. 612 P.2d 948, 165 Cal.Rptr. 858 (1980), des pite its being *183 criticized in a minority opinion as representing counter-productive public policy. Id. at 479-80, 612P.2d at 956-57, 165 Cal.Rptr. at 866-67, (Clark, J., dissenting). We recognize, of course, that California's statute is completely differ ent from ours, providing as it does for increased re covery when the employer's misconduct is determ ined to have been "serious and willful." But the Contra Costa opinions serve to illustrate the under lying disagreement as to public policy, the argu ment against our result being that allowing this sep arate cause of action will deter the initiation and maintenance**517 of corporate medical programs. Justice Clark explained this point of view: I am afraid that today's lesson will not be lost on employers: Should they try to remain ignorant of employees' health problems and thereby disen gage themselves from special medical programs for fear of triggering today's tort liability? The majority have drawn a classification between employers who do not engage in medical programs to discover occupational illnesses and thus will have their liability limited to workers' compensation, and employers who maintain such programs and thereby run the risk of tort liability in addition to compensation liability. If such a classification is warranted, does not public policy require the exposure to liability be reversed? [ Id., 612 P.2A at 957. 165 Cal.Rptr. at 867.] We remain unpersuaded by these concerns, however, because corporate medical departments will remain immune from liability at common law for all conduct short of intentional wrongs. Under our holding, all degrees of negligence continue to be subject to the "exclusive remedy" bar of com pensation. Thus, these plaintiffs now face the unen viable burden of proving a deliberate corporate strategy to conceal plaintiffs' asbestos-related dis eases that were discovered by defendants-doctors in corporate physical examinations. Proof that the doctors negligently misdiagnosed plaintiffs' x-rays or estimated poorly concerning the seriousness of plaintiffs' maladies will be insufficient to establish a cause of action outside the Compensation Act. If, however, plaintiffs can in fact prove their allega tions of fraudulent concealment of known diseases by defendants-doctors, we think it wholly proper that defendants be held to *184 answer for their misconduct. Those corporate medical departments that do their best to provide legitimate medical ser vices to their workers, yet commit a negligent error along the way, have no reason to fear increased li ability as a result of our holding. On the other hand, those corporations that would use their medical de partments as a tool to prevent employees from learning of known injuries that are substantially certain to be aggravated by lack of disclosure must be deterred from embarking on such a course of conduct. VI [7] Defendant du Pont additionally argues that ac cording to the express statutory language, the "intentional wrong" exception of N.J.S.A. 34:15-8, see supra at 509, applies only to co-employees, so that workers' compensation is still plaintiffs' exclus ive remedy with respect to its employer, du Pont. In support for this position, du Pont indicates that an 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 15 earlier proposed, but never enacted, draft of NJ.S.A. 34:15-8 expressly included employer ac tions as being subject to the "intentional wrong" ex ception to exclusivity. Du Pont contends that be cause this proposed language does not appear in the enacted version of NJ.S.A. 34:15-8, the legislature did not intend that the "intentional wrong" excep tion be applied to employers; rather, the legislature chose to adopt a strict no-fault system whereby em ployers were required to make payment to all em ployees injured on the job without regard to fault, in exchange for total exclusivity of relief under the Compensation Act. Plaintiffs, on the other hand, explain the co employee focus of the "intentional wrong" excep tion not as a means to indicate that an employer's intentional wrongs are immune from common-law suits but rather as the legislature's specific response to judicial misinterpretation of statutory intent. Pri or to the enactment of the 1961 amendment that ad ded the "intentional wrong" exception to the ex clusivity provision of the Compensation *185 Act, corporate officers and co-employees were being found liable for their negligent actions that resulted in personal injuries to other employees. See Stacy v. Greenberg, 9 N.J. 390, 397, 88 A.2d 619 (1952); **518Vam v. Rohrbach. 35 N.J.Super. 260, 263, 113 A. 2d 838 (App.Div.), certif. denied sub nom. Evans v. Matthews, 19 N.J. 362. 117 A.2d 203 (1955). The practical effect of allowing causes of action based on negligence to proceed against co employees was that employers remained burdened with the weight of common-law damage judgments by reason of a legal or moral obligation to indemni fy the defendant corporate officer or supervisory employee. Miller v. Muscarelle, 67 N.J.Super. 305, 321, 170 A.2d 437 (App.Div.), certif. den., 36 N.J. 140, 174 A.2d 925 (1961); see Hagen v. Koernev, 64 N.J.Super. 580, 166 A. 2d 784 (App.Div. 1960). Thus, in order to relieve employ ers of this unintended burden, the 1961 amendment, L. 1961, c. 2, was added to NJ.S.A. 34:15-8 to make clear that negligent actions of co-employees were compensated exclusively within the terms of the Compensation Act. In light of this need ex pressly to include a co-employee's negligence with in the coverage of the Compensation Act, it was ne cessary to make clear that a co-employee's inten tional wrongs were not subject to the exclusivity provision of the Act. Plaintiffs contend that no mention was made of the intentional wrongs of the employer because there was no need for any provi sion in the act to clarify this matter-intentional wrongs were never within the coverage of the Com pensation Act. Because it was understood that the Compensation Act was never meant to be used as a shield to allow actors to harm employees with im punity, there was no need for the legislature to ad dress the issue of employer intentional wrongs in the 1961 amendment. We are convinced that the intentional wrongs of an employer as well as those of co-employees fall out side of the boundaries of the Compensation Act. Whenever, as here, the employer is a corporation, the employer can act only through its employees, so for practical purposes actions taken by certain cor porate officers and supervisors are actions taken by the corporate-employer. *186 The allegations in these cases point up the fact that the acts of a co-employee are for practical purposes identical to the acts of his employer. Plaintiffs do not accuse the defendants-doctors of acting alone to inflict permanent injury on them; rather, the doctors are seen merely as employees who went along with whatever their employer wanted-tools in du Pont's corporate strategy to pre vent workers from learning of their injuries. Without the crucial linchpin of du Pont's role in controlling its medical department, there is nothing in this regard to suggest that the defendant doctors planned to commit intentional wrongs against the plaintiffs. We therefore find that defendant-employ er du Pont is subject to suit at common law for al leged intentional wrongs committed against plaintiffs-employees. VII 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 16 A final point to consider is how the doctrine of election of remedies affects a plaintiff asserting a cause of action under the "intentional wrong" ex ception of N.J.S.A. 34:15-8. Plaintiffs have filed workers' compensation claim petitions, and as noted supra at 509, defendants do not dispute that plaintiffs' injuries are compensable under the Com pensation Act. The question arises, therefore, whether plaintiffs' pursuit of their compensation remedies acts as an election that bius^their addition al civil suit for intentional wrong. See Seltzer v. Isaacson, 147 N.J.Super. 308, 371 2d 304 (App.Div.1977). FN4. Although the record does not reveal whether compensation payments have already been made, whether plaintiffs have actually received their awards is irrelevant in light of our conclusion that plaintiffs are not barred by the election-of-remedies doc trine. Precluding plaintiffs from a common-law cause of action for intentional wrongs because they have already chosen to seek the relief available under workers' compensation would be an unduly harsh and technical application of the electionof-remedies doctrine. The right to bring a commonlaw action for *187 intentional wrongs beyond the intended scope of the Compensation Act would be a shallow right indeed if a claimant**519 were forced to forfeit the recovery guaranteed by the Compensation Act in order to gamble on being able to prove that his injury was caused by the intention al wrong of his employer or co-employee. Plaintiffs who lose that gamble will be left totally uncompensated-even though it may be undisputed that those plaintiffs' injuries arose out of their employment-thus frustrating the Compensation Act's goal of providing security to workers who are disabled on the job. f8][9] Our view is that in light of the Compensation Act's purpose of assisting disabled workers, the best approach is to allow a plaintiff to process his work ers' compensation claim without forfeiting the op- portunity to establish that he was injured as a result of conduct that amounted to an intentional wrong, entitling him to seek damages beyond those avail able in workers' compensation. If, however, a plaintiff should prevail in his suit based on inten tional wrong, he would not be entitled to keep the entire amount of his compensation award as well as his civil suit remedy. That double recovery is to be avoided is evident from so much of the Compensa tion Act as demands that compensation claimants who have recovered from third parties be required to reimburse their employer or its insurance carrier for compensation payments already made. N.J.S.A. 34:15-40. Thus if the trier-of-fact determines that du Pont and/or its doctors have been guilty of an in tentional wrong as a result of their alleged fraudu lent concealment of existing occupational diseases, du Pont or its insurance carrier will be able to offset compensation benefits previously paid to the extent that the civil damage award would serve as a double recovery. Plaintiffs' pursuit of compensation benefits will not serve to preclude the common-law suit that we have recognized in this opinion. The existence of the Compensation Act as social legislation to aid dis abled workers should not prevent these plaintiffs from attempting to establish that the actual cause of *188 their disabilities is an intentional wrong bey ond the necessary risks of employment. To the ex tent that the Appellate Division opinion of Seltzer v. Isaacson, supra. 147 N.J.Super. 308, 371 A.2d 304, holds to the contrary, it is expressly overruled. VIII As to so much of plaintiffs' 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. They were dismissed by the tri al court and the judgment of dismissal was affirmed by the Appellate Division. So much of the Appel late Division's judgment as embraces dismissal of the first count of the complaint is affirmed. 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 17 Plaintiffs have pleaded a valid cause of action in their second count as against du Pont and its physi cians, based on an intentional wrong. The trial court dismissed that count as to du Pont but permitted it to stand as against the company doctors. The Ap pellate Division affirmed the dismissal as to du Pont and reversed the order denying summary judg ment as to the doctors. Because we have concluded that the second count states a valid cause of action against both the employer and the physicians, we reverse so much of the Appellate Division judg ment as encompasses plaintiffs' second count. Affirmed in part, reversed in part. The cause is re manded to the Law Division for further proceedings consistent with this opinion. HANDLER, J., concurring in part and dissenting. In this case employees and former employees of E.I. du Pont de Nemours & Company (du Pont), suffering from painful and fatal asbestos en gendered diseases, wish to bring common-law ac tions against du Pont and its physicians for inten tional infliction of injuries. All the plaintiffs worked at various du Pont manufacturing plants in New Jersey for periods of twenty **520 *189 years or more. The workers allege that during the course of their employment, their employer, du Pont, through the company physicians, "knew, or in the exercise of reasonable medical care should have known, of the dangers inherent in the use and ex posure of plaintiffs to asbestos products, dust and fibers resulting from the use of said asbestos products." Plaintiffs further allege that du Pont "with full knowledge of the consequences of asbes tos use and exposure, did by design, resolve, de termination and thereby with intent directly conceal information of such life threatening use and/or ex posure from the plaintiffs, thereby intentionally and willfully concealing from the plaintiffs the nature and extent of such dangers to their health." Plaintiffs' second count alleges that du Pont and its doctors "with deliberate intent to induce plaintiffs to continue to work under hazardous conditions, did conspire to and did fraudulently conceal from plaintiff[s] knowledge of diseases known by these defendants to be caused by ingestion of asbestos fibers and dust." The defendants contend that plaintiffs' claims are barred because the Workers' Compensation Act provides the exclusive remedy for plaintiffs' occu pational diseases. Defendants also argue that the N.J.S.A. 34:15-8 "intentional wrong" exception to the exclusiveness of the Workers' Compensation Act's remedy is not available because neither du Pont's nor du Pont's doctors, conduct as alleged amounts to a "deliberate intent" to harm plaintiffs. The Court today recognizes that in order for an in jured worker suffering from an occupation-related disease to bring a common-law action against his employer based upon "intentional wrong", thereby escaping the exclusivity provision of the Workers' Compensation Act under N.J.S.A. 34:15-8, the worker must prove that the employer's actions were "substantially certain" to cause the resultant dis ease. The Court also interprets the "intentional wrong" exception to the exclusive remedy of the Compensation Act as encompassing intentional wrongs committed by employers as well as a work er's co-employees. *190 I agree with these propositions of law. However, I think that the Court errs in applying its standard to the facts of this case. While the Court professes to endorse the "substantially certain" standard in construing the "intentional wrong" ex ception, its rejection of plaintiffs' common-law cause of action in the context of this case in effect requires that an employee demonstrate a much higher degree of knowledge on the part of the em ployer than "substantial certainty." The effect of the Court's decision is to impose a level of know ledge of resultant harm that is virtually akin to a showing of subjective intent or actual purpose to in flict injury. I take issue with the Court's application because, as I view the record, plaintiffs have presented a cause of action that genuinely and fairly raises the issue of whether or not defendants in this case possessed and concealed information indicat ing that exposure to asbestos was "substantially 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 18 certain" to cause the occupational diseases that have debilitated the plaintiffs. I would thus reverse the lower court's disposition of plaintiffs' "initial in tentional concealment and exposure" claims and permit that cause of action to proceed to a plenary trial. The Court also upholds plaintiffs' claims against du Pont and its physicians for fraudulent failure to dis close the plaintiffs' contraction of asbestos en gendered diseases and consequent aggravation of those diseases. I concur in the majority's disposition of this claim. However, I reiterate my view that the Legislature, in providing for co-employee immunity in the 1961 amendments to the Workers' Compens ation Act, NJ.S.A. 34:15-8, did not intend to relieve company physicians of legal responsibility for their negligence or other tortious conduct. I would grant plaintiffs' an independent cause of action for a com pany doctor's malpractice consisting of professional negligence, as well as for fraudulent misconduct. **5211. In addressing plaintiffs' claims focusing upon the asserted intentional infliction of injuries, the major ity embraces a "substantial *191 certainty" test. It rejects the notion that in order to obtain remedial relief and redress beyond the narrow strictures of the Workers' Compensation Act the employees must prove du Pont and its doctors subjectively de sired to harm its workers. The subjective standard, which is disapproved by the Court, is not totally wanting in support. It is the so-called "narrow rule" endorsed by Professor Lar son and the authorities cited by him. 2A A. Larson, The Law o f Workmen's Compensation, 68.13 at 13-22 to 13-27 (1983). Ante at 510-511. Professor Larson believes that in order for an act to lose its "accidental" quality and fall outside the exclusive remedy of Workers' Compensation the act must amount to a "deliberate infliction of harm compar able to an intentional left jab to the chin." Id. at 13-27. As noted by the Court, Professor Larson's test unsatisfactorily limits its scope to acts commit ted for the purpose of achieving certain con sequences and ignores acts that are "only" known to produce certain consequences. Recognizing that "the Legislature could not have intended that the system of workers' compensation would insulate actors from liability outside the boundaries of the Act for all willful and flagrant misconduct short of deliberate assault and batteryfante at 177, the Court prudently rejects the "narrow rule" and incor porates "knowingly" committed acts within the definition of intentional wrong. See also Perlin, "The German and British Roots of American Work ers' Compensation Systems: When is an `Intentional Act' `Intentional'?" 15 Seton Hall L. Rev. 849 (1985) (contending that British and Ger man historical roots of the New Jersey Workers' Compensation system support a "broad" interpreta tion of the "intentional wrong" exception to the ex clusivity of the Compensation Act's remedies). Although the Court correctly discredits the "subjective desire" approach, it is difficult to dis cern from the Court's opinion any parameters or de tails of the standard it employs. In part, this concep tual ambiguity is attributable to the majority's ex tensive reference to authority that reflects much narrower *192 criteria for allowing a common-law cause of action. The Court adverts to Bryan v. Jef fers, 103 N.J. Super 522, 248 A.2d 129 (App.Div.l968), and its state and federal progeny despite that case's ruling that "intentional wrong" in the compensation statute means "deliberate intention" and excludes concepts of constructive intent. Similarly, the out-of-state cases cited by the Court either adopt a pure subjective-pur pose test or concern complaints that did not allege the type of "knowledge" that the plaintiffs here al lege. One case cited by the Court explicitly adopts and applies a subjective-purpose test, rejecting the plaintiffs complaint because the plaintiff did "not allege that the employer was motivated by a desire to harm him." Burke v. Interlake, Inc., 600 F.Supp. 59, 61 (D.Conn.1984). 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 19 FN1. Arcell v. Ashland Chemical Co., 152 N.J.Super. 471, 378 A. 2d 53 (Law Div. S977), Copeland v. Johns-Manville Products Corp., 492 F.Supp. 498 (D.N.J. 1980), and Petrusha v. JohnsManville, 83 F.R.D. 39 (E.D.Pa.1979), cited ante at 170, all relied on Jeffers in finding the New Jersey Worker's Com pensation Act to be the exclusive remedy for alleged intentional torts, and these cases are similarly repudiated by today's decision. Ante at 511). Moreover, other cases mentioned by the Court use a subjective-purpose standard, but, as Bryan and its progeny did, couch the standard as a deliberate in tent to injure." See Prescott v. United States, 523 F.Supp. 918, 928 (D.Nev. 1981), affd, 731 F.2d 1388 (9th Cir. 1984) (under Nevada law, need "deliberate intent to kill"); Houston v. Bechtel Assocs., Professional Corp., 522 F.Supp. 1094. 1096 (D.D.C.1981) ("nothing short of specific intent to injure" falls outside scope of Federal Workers' Compensation scheme, relying on Professor Lar son's treatise); **522Tysenn v. Johns-Manville Corp., 517 F.Supp. 1290, 1293 (E.D.Pa.l 981) (refused to extend Pennsylvania's judicially-created intentional-tort exception beyond assault by an em ployer or other "deliberate, egregious conduct"); Phifer v Union Carbide Corp., 492 F.Supp. 48_->, 485 (E.D.Ark.1980) ("only if an employer commits acts with an actual, specific and deliberate intent to injure the employee will the employee have a com mon-law action in tort"). Another case found in the Court's opinion *193 employs a "substantial cer tainty" test, but involves a complaint that alleges intent only with respect to employer actions, and not with respect to results. See Shearer v. Homestake Mining Co., 557 F.Supp. 549 (D.S.D.1983), affd, 727 /\2 d 707 (8th Cir.1984) (no showing that defendant knew or believed ceiling would collapse as a result of violating safety standards). Finally, the Court points to Kofron v. Amoco Chem. Corp., 441 /f.2d 226 (Del. 1982), where the Delaware Su preme Court refused to find any intentional tort- exception, including purposely-committed torts, to the Delaware Workers' Compensation Act's exclus . . . FN2 lvity provisions. FN2. Blade v. Anaconda Aluminum Co., Inc., 452 N.E.2d 1036 (Ind.Ct.App.1983), ante at 511, is admittedly more relevant to this case. In Blade, a plaintiff killed in a furnace explosion alleged that defendant knew that his failure to maintain and install certain safety devices on the furnace would result in a furnace explosion. An Indiana intermediate appellate court, quoting the "substantial certainty" definition of intent, determined that "no facts were alleged which would support an inference that [defendant] intentionally injured Mr. Blade." Id. at 1038. I nevertheless view Blade as distinguishable in that plaintiffs here have sufficiently alleged facts that would support an inference of knowledge of harm on duPont's part, bee discussion infra at 523-524. The Court further obscures the meaning of its "substantial certainty" test by what appears to be an inconsistent assessment of the record in determin ing its sufficiency to support the causes of action set forth in plaintiffs' complaint. With respect to plaintiffs' claims alleging an aggravation of the dis ease based on fraudulent, conspirational conceal ment, the Court concludes that the record is eviden tially sufficient to permit the issues to be submitted to a jury. However, with respect to the workers claims alleging initial asbestos exposure with knowledge and concealment of the consequences, the Court apparently believes the record is insuffi cient to allow this cause of action to be tried. It seems, according to the Court's disposition, that knowledge of the degree of risk involved in indu cing or allowing afflicted workers to continue working in poisonous plant atmosphere presents tri able issues on the theory of conspiracy and fraudu lent concealment. It is unclear why a triable issue is *194 not also presented as to whether these same 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 20 doctors, and thus du Pont, had knowledge to a sub stantial certainty associated with the initial asbestos exposure in the plants, aside from whether this knowledge reached the level of any specific intent or purpose to inflict harm, or fraud in concealing that harm. Despite this entwinement between plaintiffs' inten tional initial exposure and concealment claims and intentional- or fraudulent-aggravation claims based on subsequent or continuing exposure, the Court in sists on treating the two sets of claims disparately, dismissing the former set of claims while allowing the latter set to go forward. Although the California Supreme Court made a similar distinction between initial exposure-concealment and aggravational ex posure-concealment in Johns-Manville Prods. Corp. v. Contra Costa Superior Court, 27 Cal. 3d 465, 612 P.2d 948, 165 Cal.Rptr. 858 (Cal. 1980), that court's rulings were made against a completely different statutory background from that faced by this Court. A provision of the California workers' compensation statute specifically covers, and in fact provides an increased recovery for, an employ er's "serious and willful" misconduct. The Califor nia Court found that when the California Legis lature enacted this provision in 1917, it intended the provision to be a substitute for the pre-existing right of an employee to **523 bring an action at common law for ``serious and willful conduct. Id.. 612 P.2d at 950, 951, 165 Cal.Rptr. at 860, 861. Thus, the California court's dismissal of the inten tional exposure claim was not based on a failure to satisfy some "intent" standard, but on a provision of the California Code expressly including such claims , within the workers' compensation s c h e m e / T h i s Court, in mimicking the Contra Costa result, reaches an incorrect conclusion in this case, and blurs the contours of the "substantial cer tainty" *195 standard. The Court compounds this confusion by its affirmance of the summary dis missal of plaintiffs' claims without any focused at tention to the details of plaintiffs' allegations or ex plication of the "substantial certainty" standard. A careful analysis of the "substantial certainty" stand ard and a conscientious application of that standard to plaintiffs' claims reveal why plaintiffs' claims should not be dismissed. FN3. The California Court upheld the cause of action for aggravational exposure by ruling, in effect, that willful aggravation of a work-related injury by a doctor is not the type of "hazard of employment" that comes within the exclusive purview of the compensation statute. II. The "substantial certainty" test adopted by the Court is not limited to instances of a subjective de sire to harm. The Court explicitly states that its standard does not insulate employers from com mon-law liability for "all willful and flagrant mis conduct short of deliberate assault and battery. Ante at 177. The Restatement 2nd o f Torts, which the Court cites in support of its ruling, ante at 178, states: All consequences which the actor desires to bring about are intended, as the word is used in this Re statement. Intent is not, however, limited to con sequences which are desired. If the actor knows that the consequences are certain, or substan tially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. [Restatement 2nd o f Torts, 8A, comment b. (emphasis added).] The "substantial certainty" test thus imports into the concept of "intentional act" conduct undertaken with knowledge that certain consequences are , ,, 1hN4 "substantially certain to occur. FN4. The New Jersey Criminal Code sup ports analogously this statutory under standing of "intent." Under the Code "purposeful," i.e. desired, and "knowing" homicides both satisfy the mens rea re- 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 21 quirement for first degree murder. See N.J.S.A. 2C:11-3. The claims dismissed by the Court allege just such knowledge. It is true that merely alleging deliberate acts, without raising a genuine issue as to defend ant's "purposeful" or "knowing" state of mind with respect to those acts, will not survive a summaryjudgment motion. But here plaintiffs' complaints al lege that defendant du Pont exposed workers to as bestos "with full knowledge of the consequences" of such *196 exposure. Read in its most favorable light as is required on a summary judgment motion, Judson v. Peoples Bank & Trust Co. oj Westfield. 17 NJ. 67, 73-75, 110 .4.2d 24 (1954), plaintiffs' claims maintain that du Pont, through its doctors, knew with "substantial certainty" that the level of asbestos exposure in its plants would at some time produce the diseases that eventually did material ize. Nevertheless, the Court assumes that plaintiffs have alleged something less than "substantial cer tainty," even though at oral argument plaintiffs' counsel specifically endorsed the "substantial cer tainty" standard and thus implied that plaintiffs do indeed plan to meet a "substantial certainty" stand ard. The Court's view of the record is unnecessarily and unfairly strict. The affidavits of du Pont's doctors deny only that the doctors subjectively desired to injure plaintiffs; they do not dispute or contradict plaintiffs' allegations respecting a claim under the "substantial certainty" standard. On the other hand, plaintiffs have already presented in the record one du Pont plant physician's deposition testimony that he **524 learned of asbestos' dangers sometime between 1965 and 1976. Additionally, the record reveals that du Pont's Head of Pathology from 1958 to 1963 has stated in an unexecuted affidavit that during his tenure he did, on numerous occasions, in his professional and medical capacity, advise cor porate medical officers of du Pont of the dangers and risk of employees' asbestos exposure. Moreover, in order to prove du Pont's knowledge on these matters, plaintiffs are not limited to direct statements by du Pont personnel revealing their state of mind. With regard to proving intent, "it is correct to tell the jury that, relying on circumstan tial evidence, they may infer that the actor's state of mind was the same as a reasonable person's state of mind would have been." W. Prosser & W. Keeton, The Law o f Torts, 8 at 36 (5th ed. 1984). The plaintiffs in this case could prove du Pont's know ledge by producing evidence with respect to the state of available medical knFoNw5ledge of asbest,os's dangers *197 over the years, ` du Pont's previous experiences with workers exposed to asbestos, the concentrations of asbestos at the New Jersey plants, and other similar factors bearing on whether a reas onable doctor in the position of the du Pont doctors would have known that the conditions at the du Pont plants would be substantially certain to en gender the ailments inflicted upon these plaintiffs/ ^ 5 Cf. *198Evers v. Dollinger. 95 N.J. 399, 471 A.2d 405 (1984) (plaintiff suffering from cancer can use expert medical testimony to show degree to which doctors negligence increased the risk of plaintiff contracting the cancer). FN5. The first recognition of the hazards of asbestos exposure can be traced back to Pliny the Younger who some time in 61 to 114 A.D. is said to have commented on the sickness of slaves who worked with asbes tos. I.J. Selikoff and D.H.K. Lee, Asbestos and Disease, at 20 (1978). The first signi ficant scientific recognition of asbestos' dangers came in the 1920's in a British study of a case of asbestosis in a person who had worked for twenty years weaving asbestos textile products. Cooke, "Fibrosis of the Lungs Due to Inhalation of Asbestos Dust," 2 Brit.Med.J. 147 (1924); Cooke, "Pulmonary Asbestosis," 2 Brit.Med.J. 1024 (1927). In the 1930's, several more studies on the hazardous quality of asbestos were published. One re searcher reported in 1936 that of 71 work ers in his study who been dismissed from asbestos plants in North Carolina, 16 had 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 22 slightly advanced, 35 moderately ad vanced, and 20 markedly advanced asbestosis. V z m / / , "Asbestosis: A roentgeno logic review of 71 casesf Radiology 27, 279 (1936). The U.S. Public Health Ser vice also commissioned a study on the ef fects of asbestos exposure. The resulting report published in 1938 fully documented the hazards of asbestos exposure, and re commended precautionary asbestos dust concentration levels. Dreessen, et al., A Study o f Asbestos in the Asbestos Textile Industry, Public Health Bill No. 241 (1938) Research on asbestos continued in the 1950's and 60's. In 1965, Selikoff, Churg, and Hammond published a land mark study that conclusively linked the oc currence of pulmonary asbestosis with the duration of asbestos exposure. Selikoff, Churg, and Hammond, "The Occurrence of Asbestos Among Industrial Insulation Workers," 132 Ann. New York Acad.Sc. 139 (1965). The statutory culmination of the extensive medical studies on asbestos was the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq, 84 Stat. 1590, which authorized the Secretary of Labor to establish standards for per missible concentrations of asbestos fibers. See generally Borel v. Fibreboard Paper Prods. Carp., 493 .26, 1076, 1083-1085 (5th Cir. 1973), cert, denied, 419 U.S. 869, 95 S O . 127, 42 L.Ed.2d 107 (1974) (tracing history of medical knowledge of asbestos-related occupational diseases). FN6. Defendant's awareness of asbestos' vicious effects may have become "substantially certain" at a time after plaintiffs began working at defendant's plant. In such a case, plaintiffs' claim should not be barred but should be circum scribed to the damage suffered for the peri od of employment during which defendant possessed its knowledge. Despite these considerations, which demonstrate the availability of evidence and the existence of genuine issues of fact, the Court has affirmed de fendants' partial summary judgment on this claim without any satisfactory analysis. Several ineluct able aspects of plaintiffs' proofs caution against granting du Pont summary judgment. The New Jer sey Supreme Court, per Justice Brennan, observed in Judson v. Peoples Bank & T'mst Co. o f Westfield, supra, 17 N.J. at 76. 110 N.2d 24 that: Where * * * the opposing party * * * must probe the conscience of the moving **525 party (or its officers, when, as here, a corporation) to prove his case, or in any case where the subject ive elements of willfulness, intent or good faith of the moving party are material to the claim or defense of the opposing party, a conclusion from papers alone that palpably there exists no genuine issue of material fact will ordinarily be very diffi cult to sustain. * * * Indeed, subjective elements aside, a note of caution has been sounded as to any case where the opposing party must prove his claim or defense from what he can draw from the other party. Later, in Ritvoio v. American Cas. Co., 39 N.J. 490, 189 A. 26 204 (1963), the Court reiterated that where a case may rest upon opinion or expert testimony, a court should be particularly slow in granting summary judgment.... The same hesit ancy should exist where the court is necessarily required to resolve questions of intent and mental capacity. Ordinarily in such situations justice is best served by plenary trial on the merits. And the need for caution is especially urgent where a party must rely for his case largely on what he can draw out of his adversary's witnesses. [Id. at 500 (citations omitted). The warnings against granting summary judgment expressed in Judson and Ruvolo apply with particu lar force to this case, where plaintiffs' proofs against a corporation derive in large part from doc tors whose professional careers may be jeopardized 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N J. 161, 501 A.2d 505) Page 23 by their adverse testimony. The Court has thus ac ted quite improvidently in dismissing plaintiffs' in tentional-exposure and concealmentclaims. See, e.g., Boudeloche v. Grow Chem. Casting Corp., 728 F.2d 759 (5th Cir. 19841; *199Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608, 433 ME.2d 572,cert, denied, 459 U.S. 857. 103 5X7. 127. 74 L.Ed.ld 110(1982). There is added reason for consternation over the majority's abrupt dismissal of plaintiffs' intentional exposure and concealment claims. Both courts be low dismissed this claim by ruling that a worker could not sue an employer at common law for any work-related injury regardless of the employer's in tent, a rationale that today's decision correctly repu diates. However, no further exploration or analysis of the evidence that could be marshaled to support this claim has been made. Thus, plaintiffs' import ant and very significant intentional-exposure and concealment claims will have passed through three levels of the New Jersey judiciary without any thor ough consideration of their merits. These claims de serve better treatment. Where complicated issues with farreaching effects are involved, a Court should exercise caution in granting summary judg ment without an adequately developed record. See Jackson v. Muhlenberg Hosp., 53 N.J. 138, 249 A.2d 65 (1969). Finally, the public policy of this State, as most re cently expressed by the Legislature in the "Worker and Community Right to Know" Act, N.J.S.A. 34:5A-1 to -31, supports the conclusion that the in tentional-tort exception to the exclusivity of the Workers' Compensation remedy includes both ini tial and aggravated concealment of known dangers from hazardous substances such as asbestos. This statute states that [t]he Legislature finds and declares that the pro liferation of hazardous substances in the environ ment poses a growing threat to the public health, safety, and welfare; ... and that individuals have an inherent right to know the full range of the risks they face so that they can make reasoned decisions and take informed action concerning their employment and their living conditions. [1VJ.S.J. 34:5A-2 (emphasis added).] To effectuate the purposes of the "Right to Know Act" employers are required to submit to the De partment of Health a survey of the hazardous ma terials present in the work place environment, N.J.S.A. 34:5A-7, and to educate and inform their employees about these substances. N.J.S.A. 34:5A-13. The majority believes that the Legis lature in enacting the "Right to **526 *200 Know Act" made "a studied decision to address the prob lems associated with hazardous substances in the workplace in some manner other than simply ex panding the system of worker's compensation." Ante at 181. However, the majority does not refer to any legislative history or findings to support its na ked conclusion that the "Right to Know Act" was intended as the exclusive hazardous substance "remedy." A more reasoned view is that the "Right to Know Act" furnishes an additional avenue of protection, supplementing those available under the Workers Compensation Act and the basic common law. See Lady v. Copygraphic, 85 N.J. 668, 428 A.2d 1317 (1981) (worker alleging retaliatory firing attributable to the filing of a workers' compensation claim has a common-law right of action for wrong ful discharge in addition to the penal and adminis trative remedies provided by the Workers' Com pensation Act). The underlying standard of conduct prescribed by the "Right to Know Act" is disclos ure to the public and to workers of the presence of known hazardous substances. Recognition that the intentional-tort exception of N.J.S.A. 34:15-8 con fers an independent common-law cause of action for the concealment of known hazardous substances clearly effectuates the goals and policies of the "Right to Know Act." In reaching its disposition of plaintiffs' intentional initial-exposure and concealment claims, the Court is quite properly concerned with the "intentional w rong" exception swallowing up the general rule that Worker's Compensation is the exclusive rem 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 24 edy for work-related injuries. Ante at 513. However, a favorable disposition of plaintiffs' in tentional initial-exposure and concealment claims will not result in a deluge of similar claims, nor un dermine the "occupational disease" coverage of the Compensation statute. As with their intentional ag gravation claim, plaintiffs still would have a very substantial burden to meet in proving their claims of intentional exposure. In view of the difficulty of this task, many workers may prefer their Workers Compensation remedy and its accompanying con venience and ease of proof. However, the odds against an injured *201 worker's eventual success do not justify a denial of a cause of action altogeth er. See Ruvoio v. American Cas. Co., supra. 39 N.J. at 501, 189 A.2d 204. The Legislature has de cided that under certain narrow circumstances an injured worker's remedy does not lie exclusively in the Workers' Compensation insurance scheme. Fair ness and justice dictate that those workers who may meet the Legislature's criteria be given the oppor tunity to prove it. Naturally, the disposition of each complaint and al legation under the "substantial certainty" test is "case" specific, depending on the facts. On these facts, however, I think plaintiffs have presented a genuine issue as to defendant's knowledge of the consequences of exposure to asbestos. I would thus remand for a full trial on that issue. III. In contrast to its disposition of plaintiffs' first claim, the Court denies defendants' summary judg ment with respect to plaintiffs' additional claims and holds that "plaintiffs' allegations that defend ants fraudulently concealed knowledge of alreadycontracted diseases are sufficient to state a cause of action for aggravation of plaintiffs' illnesses." While I agree with this ruling, I also think that doc tors should not enjoy co-employee immunity under the Workers' Compensation Act since they owe an independent duty to plaintiffs as patients, and con sequently should be held independently liable for their negligently-performed services. I accordingly dissent from so much of the Court's ruling as brings doctors employed by du Pont within the protective umbrella of the Compensation Act's co-employee immunity. In dissenting from this portion of the Court's ruling, I rely substantially on my dissenting opinion in Boyle v. Breme. 93 N.J. 569, 570. 461 A.2d 1164 (1983). I take this opportunity to add one more objection to **527 granting company physi cians this immunity. Doctors, in contrast to other "co-employees," owe to the workers they treat an independent duty that originates outside *202 of the employment relation ship. Medical practitioners, licensed by the State, owe prime responsibility to the public to uphold their sworn oaths as healers. Any duty owed to an employer or co-employee as a co-employee is ne cessarily of a secondary nature. Employees who are professionals owe a special duty to abide not only by federal and state law, but also by the recognized codes of ethics of their professions. That duty may oblige them to de cline to perform acts required by their employers. [ Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980).] This Court should not interpret a statute as immun izing a doctor's breach of that primary and special duty absent a clear expression by the Legislature that it intended the statute to have that effect. In enacting the 1961 amendments to N.J.S.A. 34:15-8 granting co-employees immunity for negli gent acts, the Legislature did not express or effectu ate an intention to include doctors within the scope of that privilege. Indeed, granting doctors "co-employee immunity" does not further the un derlying purpose of the 1961 amendment, but does undermine New Jersey's public policy in deterring negligent conduct and fully compensating negli gently-inflicted injuries. The "co-employee im munity" amendment was designed to abolish "cause [s] of action in tort against a fellow employee ... 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d 505 101 N J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N.J. 161, 501 A.2d 505) Page 25 [that] ha[d] frequently resulted in burdening the employer indirectly with common law damages su perimposed upon workmen's compensation liability by reason of either a legal, moral or practical oblig ation to indemnify the sued ... employee." Miller v. Muscarelle, 67 NJ.Super. 305, 321. 170 A.2d 437 (App.Div.3 96l). Allowing recovery against em ployers through respondeat superior undermined the Worker's Compensation system's function as the exclusive remedy for most work-related accidents, and more particularly as the exclusive source of li ability for employers for most work-related injur ies. However, the respondeat superior doctrine, which spawned the 1961 amendments, would not apply to doctors. "The relationship *203 between an em ployer and a company physician differs substan tially from other employer-employee relationships to which the doctrine of master/servant would ap ply. Rather than directing and supervising the doc tor's work, the employer lacks control over the medical, patient-treating aspects of its house physi cian's work." Boyle v. Breme. supra, 93 NJ. at 573. 461 A.2d 1164 (Handler, J., dissenting). While it is not the only point of inquiry, the extent of em ployer control over an employee's employment re sponsibilities is a crucial element in the creation of a master-servant relationship. See Restatement 2nd o f Agency, 2; see also Pelliccioni v. Schuyler Packing Co., 140 NJ.Super. 190, 199, 356 A.2d 4 (App.Div.1976) (although element of control is not the be-all and end-all of ascertaining whether a master and servant relationship exists and each case must be determined on its own facts, it is generally the most important element). Other important factors employed in the calculus of the master-ser vant determination include the distinctiveness of the employee's occupation and the degree of spe cialized skill inherent in the employee's daily du ties. Finally, in deciphering an employment situ ation, a court will also look at the identity of the party supplying the equipment, the length of em ployment, the method of payment, the subjective beliefs of the actors, and whether or not the em ployee s work is part of the employer's regular busi ness. See Restatement 2nd o f Agency, 2, 220; Miklos v. Liberty Coach Co.. 48 NJ.Super 591, 602 (App.Div.1958). In this case of doctors em ployed by companies, the lack of employer control and direction, the medical profession's skill and dis tinct occupational personality,**528 and the fact that medical services are not a product marketed by du Pont militate strongly towards viewing doctors as independent contractors. Cf. Tutino v. Ford Mo tor Co., 11 i N.J.L. 435, 168 A. 749 (C. & E. 1933) (employer not liable for injury to worker caused by negligence of physician and nurse whom employer employed). But cf. Rutherford v. Modern Transp. Co., 128 NJ.Super. 504, 320 A.2d 522 (Law Div. 1974) (plaintiff truck driver could not maintain a separate negligence cause of action as an inde pendent contractor because *204 the economic situ ation, in which plaintiff received all work and pay from defendant despite being "employed" by anoth er company, made him an employee of defendant for purposes of Workers' Compensation statute). Since employers would not be liable for the negli gence of the doctors they employ, applying the co employee immunity to company physicians does not comport with the underlying purpose of the 1961 amendments in protecting employers from double liability. No public policy is advanced by including doctors within N.J.S.A. 34:! 5-8's co employee immunity. On the other hand, the Boyle rule perniciously allows company-employed physi cians to operate undeterred at a level of perform ance beneath that which is expected of other mem bers of the medical profession at the expense of workers' lives and limbs. IV. In conclusion, I concur with the Court's holding that employers may be sued at common law for "intentional wrongs" and that conduct undertaken with knowledge to a substantial certainty that harm to workers will occur is the appropriate standard in defining an "intentional wrong." Under that stand- 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 501 A.2d505 101 N J. 161, 501 A.2d 505, 54 USLW 2327 (Cite as: 101 N J. 161, 501 A.2d 505) ard plaintiffs have stated a valid cause of action for intentional aggravation of their diseases. In my view plaintiffs have also presented meritori ous claims based on intentional initial exposure to asbestos. I believe that plaintiffs' complaints in the context of the record before us present a valid cause of action concerning du Pont's knowledge that ex posure to asbestos would be substantially certain to result in disease. I therefore dissent from the Court's dismissal of these claims. I am also of the view that plaintiffs should be ac corded an independent cause of action for du Pont's physicians' negligent malpractice. I therefore con cur in the result, if not the reasoning, of the Court with respect to plaintiffs' claims against the defend ant-physicians. *205 Accordingly, I would remand the case for trial on both these issues. For affirmance in part; reversal in part and remandment -Justices CLIFFORD, SCHREIBER, POLLOCK, JACOBS and SULLIVAN-5. Concurring in part; dissenting in part -Justices HANDLER and O'HERN-2. N.J.,1985. Millison v. E.I. du Pont de Nemours & Co. 101 N.J. 161, 501 A.2d 505, 54 USLW 2327 END OF DOCUMENT Page 26 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.