101 N.J. 161 (1985) 501 A.2d 505

WILLIAM B. MILLISON AND MARIE MILLISON, HIS WIFE; VERNON G. KRONMAIER AND DOROTHY KRONMAIER, HIS WIFE; HAROLD SCHWEBEL AND SUSAN SCHWEBEL, HIS WIFE; CLARENCE SCHWEBEL AND GERALDINE SCHWEBEL, HIS WIFE; FRANK BAPTISTE AND CATHERINE BAPTISTE, HIS WIFE; AND EDWARD B. AGAR AND EILEEN AGAR, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
E.I. DU PONT DE NEMOURS & COMPANY; WILLIAM E. NEELD, JR., M.D.; G.F. REICHWEIN, M.D.; AND ALBINAS SMULKSTYS, M.D., DEFENDANTS-RESPONDENTS, AND JOHNS-MANVILLE CORPORATION; OWENS-CORNING FIBERGLASS 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. HILDERBRAND 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 ROSEMARY 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; ARTHUR 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 RAMSEY AND VIRGINIA RAMSEY, HIS WIFE; AND EUGENE BLECKLEY, PLAINTIFFS-APPELLANTS,
v.
E.I. DU PONT DE NEMOURS & COMPANY; WILLIAM E. NEELD, JR., M.D.; G.F. REICHWEIN, M.D.; AND ALBINAS SMULKSTYS, M.D., DEFENDANTS-RESPONDENTS, AND JOHNS-MANVILLE CORPORATION; OWENS-CORNING FIBERGLASS 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 POLLOCK; AND MARY K. FERRETTI, EXECUTRIX OF THE ESTATE OF LEVIO P. FERRETTI, DECEASED, PLAINTIFFS-APPELLANTS,
v.
E.I. DU PONT DE NEMOURS & COMPANY; WILLIAM E. NEELD, JR., M.D.; AND G.F. REICHWEIN, M.D., DEFENDANTS-RESPONDENTS, AND JOHNS-MANVILLE CORPORATION; OWENS-CORNING FIBERGLASS 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.I. DU PONT DE NEMOURS & COMPANY; WILLIAM E. NEELD, JR., M.D.; AND ALBINAS SMULKSTYS, M.D., DEFENDANTS-RESPONDENTS, AND JOHNS-MANVILLE CORPORATION; OWENS-CORNING FIBERGLASS CORPORATION; JOHN DOE, M.D.; RICHARD ROE, M.D.; AND JOHN DOE CORPORATIONS (1-20), DEFENDANTS.
ORLANDO CAMELI AND ANN, HIS WIFE, PLAINTIFFS-APPELLANTS,
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 FIBERGLASS CORPORATION; PHILLIP CAREY COMPANY; UNITED ASBESTOS & RUBBER CO., D/B/A UNACRO; JOHN DOE, M.D.; RICHARD ROE, M.D.; AND JOHN DOE CORPORATIONS (1-20), DEFENDANTS.

The Supreme Court of New Jersey.

Argued April 2, 1984. Re-argued September 10, 1984. Decided December 10, 1985.

*165 David Jacoby argued the cause for appellants (Tomar, Parks, Seliger, Simonoff & Adourian, attorneys; William Tomar, of counsel; James Katz, on the briefs).

Thomas L. Morrissey argued the cause for respondents (Carpenter, Bennett & Morrissey, attorneys; Rosemary A. Hall, on the briefs).

Verice M. Mason, Assistant 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).

Sebastian P. Lombardi submitted a brief on behalf of amicus curiae Edwin Davis Merrill, M.D., (Budd, Larner, Kent, Gross, Picillo & Rosenbaum, attorneys).

The opinion of the Court was delivered by CLIFFORD, J.

The New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (Compensation Act), contains 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 maintaining a separate tort action against their employer and against company physicians. The employees charge the employer and physicians with intentionally exposing 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 employee physical examinations that reveal diseases already contracted by workmen. We hold *166 that although the employees are limited to workers' compensation benefits for any initial occupational-disease disabilities related to the hazards of their employment 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). Defendants 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 defendants are unaffected by the disposition of this appeal; therefore, all subsequent references to defendants will include only du Pont and its company physicians.

Five separate complaints were filed by different sets of plaintiffs. But for the identities and descriptions 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 asbestos 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 exposure 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 disposing of the motions for dismissal. It originally denied the motions without prejudice and instructed plaintiffs to depose the defendants-physicians in order 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 Appellate 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 (1982).

In an unreported opinion, the Appellate Division reversed the trial court's denial of the physicians' motion 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 (1982), 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 the pleadings, depositions, and admissions on file, together with the affidavits submitted on the motion, clearly shows that there is no genuine issue of material fact requiring disposition at a trial. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954); see Robbins v. Jersey City, 23 N.J. 229, 240-41 (1957). It is with this standard in mind that we examine 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 asbestos. 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, as plant physicians, included examining and treating plant employees, providing physical examinations, and being available for sick call and consultations.

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 defendants, with knowledge of the adverse health consequences of asbestos use and exposure, and as part of a concerted plan for profit, deliberately exposed the plaintiffs to a dangerous work environment. Their claims focus on two separate situations, however.

The first count of the complaint avers that defendants knew or should have known of the dangers associated 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 information 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-related diseases. They assert that each year the du Pont doctors would give employees *169 complete physical examinations, including chest x-rays, pulmonary function tests, electrocardiograms, urine analyses, and blood tests.^[1] Plaintiffs 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 concealed plaintiffs' asbestos-related diseases and sent them back into the workplace, where their initial infirmities were aggravated by additional exposure to asbestos. Plaintiffs claim that the time from defendants' first knowledge of the employee's condition to the time when the employee was told of the danger was as long as eight years.

III

It is undisputed that plaintiffs' injuries, if proven, are compensable under the Compensation Act. The controversy presented, however, calls for a determination 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 agreement, the parties have accepted the provisions of the Compensation Act and the employee qualifies for benefits under the conditions of the Act, the employee shall ordinarily be barred from the pursuit of other remedies.^[2] As the statute expressly indicates, however, an exception to the exclusivity provision is available when plaintiffs can prove an "intentional wrong."

Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof *170 than as provided in this article and an acceptance of all the provisions of this article, and shall bind the employee and for compensation 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 injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.

[N.J.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 concealed existing occupational diseases are sufficient to fall within the Act's limited "intentional wrong" exception and to take their injuries outside the intended scope of the Compensation Act. However, as noted by the Appellate Division in granting defendants' 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 (App.Div. 1968) certif. den., 53 N.J. 581 (1969) (intentional wrong in compensation 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 (Law Div. 1977) (allegations of willfully and wantonly failing to undertake known safety and health procedures for protection of employees, and negotiating with governmental bodies so that contemplated implementation of such procedures would be ignored or delayed, are insufficient to satisfy intentional-wrong standard); Copeland v. Johns-Manville Prods. Corp., 492 F. Supp. 498 (D.N.J. 1980) (Bryan requires that "intentional wrong" exception be given a narrow construction; allegations that employer, aware of dangerous working conditions, maliciously and willfully exposed workers to hazardous asbestos products and intentionally withheld information concerning the health risks do not meet the standard for intentional wrong); Petruska v. Johns-Manville, 83 F.R.D. 39 (E.D.Pa. 1979) (claims of intentionally allowing defendant *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 requires deliberate intention to injure). This requirement 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' Compensation Law:

Even if the alleged conduct goes beyond aggravated 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 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 employer's conduct, but rather the narrow issue of intentional versus accidental quality of the precise event producing injury. The intentional removal of a safety device or toleration of a dangerous 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 of Workmen's Compensation, § 68.13 at 13-22 to 13-27 (1983) (footnotes omitted).]

The approach explicated by Professor Larson emphasizes the narrow or limited character of the exception. 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 (1976) (stating general principle that exceptions in a legislative enactment are to be strictly but reasonably construed, consistent with the manifest reason and purpose of the law). The approach of construing and applying the exception in the most limited fashion consistent with the purpose of the law is followed by the vast majority of jurisdictions that have considered whether allegedly egregious 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 adequate safety equipment, and failure to comply with state and federal safety laws — workers' compensation is exclusive remedy); Shearer v. Homestake Mining Co., 557 F. Supp. 549 (D.S.D. 1983), aff'd, 727 F.2d 707 (8th Cir.1984) (allegations of creating and maintaining an unsafe workplace, deliberately violating government safety standards, or personal animosity of a supervisor were insufficient to state a cause of action under the "intentional tort" exception to compensation exclusivity); Prescott v. United States, 523 F. Supp. 918 (D.Nev. 1981), aff'd, 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 Occupational Disease Act); Houston v. Bechtel Assocs., Professional Corp., 522 F. Supp. 1094 (D.D.C. 1981) (Longshoremen's and Harbor Workers' Compensation Act is exclusive remedy of employees suffering from silicosis who allege employer willfully exposed them to unreasonably high levels of silica dust in violation of safety regulations); Tysenn v. Johns-Manville Corp., 517 F. Supp. 1290 (E.D.Pa. 1981) (knowingly and deliberately 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 employer'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.2d 1036 (Ind. 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., 728 F.2d 759 (5th Cir.1984) (pleading alleging that supervisor ordered employee to continue painting interior of tank despite fact that toxic fumes had caused employee to become dizzy and to vomit blood was sufficient to state claim under "intentional act" exception to exclusivity of compensation act); Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608, 433 N.E.2d 572, cert. denied, 459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.2d 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 exclusivity of workers' compensation act). See generally 2A A. Larson, supra, at § 68.13 (collecting cases); Annot., 96 A.L.R.3d 1064 (1980) (same). That the foregoing authorities do not, as the dissent so forcefully points out, post at 191-193, enjoy a rigid 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 recognizing the problems of proof inherent in any attempt to demonstrate subjective intent.

IV

In determining whether these plaintiffs have stated a cause of action under the "intentional wrong" exception to the exclusive-remedy provision of the Compensation Act we must be faithful to the legislative 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 development of the Compensation Act and the underlying premises that support it.

*174 The stimulus for workers' compensation legislation arose out of an increasing number of industrial accidents and the inadequacies of the common-law 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, plaintiffs-employees were inevitably confronted with the "unholy trinity" of employer defenses — contributory negligence, assumption of risk, and the fellow servant 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 of Torts, § 80 at 569 (5th ed. 1984). Thus, various authorities have estimated that at common law up to 94% of industrial accidents went uncompensated. Id. at 572 n. 43.

In 1911, in response to these common-law inequities, the legislature passed our Workers' Compensation Act. L. 1911, c. 95. This legislation involved a historic trade-off whereby employees relinquished their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injuries by accident arising out of and in the course of employment. Thus the quid pro quo anticipated by the Act was that employees would receive assurance of relatively swift and certain compensation payments, but would relinquish their rights to pursue a potentially 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 factory employee suffering from copper poisoning caused by inhaling copper dust was denied compensation under the 1911 Act. Thereafter, the legislature, 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 protection than were employees injured by "accident," amended the Act to include occupational diseases within its coverage. L. 1924, c. 124.

Initially, only nine named occupational diseases were compensable under the terms of the Act: anthrax, lead poisoning, mercury poisoning, arsenic poisoning, phosphorus poisoning, poisoning from all homologues and derivatives of benzine, wood alcohol poisoning, chrome poisoning, and caisson disease. The right to compensation was conditioned on the employee notifying the employer of his disability due to occupational disease within five months of his last exposure to the harmful substances. In order to make additional occupational 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 venenata).

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 of" the employment, id. at § 3, 34:15-35.3, and the Act specifically 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 returned to the general occupational-disease coverage, which had since replaced its limited list of specific-named occupational diseases with a definitional 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 inclusion of occupational diseases as part of the Compensation 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 work-place 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 compensable 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 occupational diseases, as yet unknown, that should nonetheless 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 workers 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 entitling 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 asbestos and concealing medical information, acted knowingly and deliberately, not accidentally or negligently, so that defendants' conduct must be considered an "intentional wrong" within the meaning 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 infliction of harm comparable to an intentional left jab to the chin." 2A A. Larson, supra, § 68.13 at 13-27.

Although we are certain 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 battery, we are equally sure that the statutory scheme contemplates that as many work-related disability claims as possible be processed exclusively within the Act. Moreover, if "intentional wrong" is interpreted too broadly, this single exception would swallow up the entire "exclusivity" provision of the Act, since virtually all employee accidents, injuries, and sicknesses are a result of the employer or a co-employee intentionally acting to do whatever it is that may or may not lead to eventual injury or disease. 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 confronts head-on the unpleasant, even harsh, reality — but a reality nevertheless — that industry knowingly exposes workers to the risks of injury and disease.

The essential question therefore becomes what level of risk-exposure is so egregious as to constitute an "intentional wrong." We are confident that the quid pro quo of workers' compensation — employer makes swift and certain payment without regard to his own fault in exchange for immunity from liability at law — can best be preserved by applying the "intent" analysis of Dean Prosser to determine 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 intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong.

[W. Prosser and W. Keeton, supra, § 8 at 36.]

*178 See also Restatement 2d of Torts, § 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 actions).

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 coverage of the Compensation Act, however, the dividing 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 Blankenship, supra, 433 N.E.2d at 581 (Locher, J., concurring); cf. Restatement 2d of Torts § 500, comment (f), differentiating reckless misconduct from intentional wrongdoing ("strong probability" is a different 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, that "deliberate intention" be shown. Contrary to the dissent's suggestion, post at 192 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; rather, we see our determination as a logical development in this sensitive field of the law.

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 also the context in which that conduct takes place: may the resulting injury or disease, and the circumstances in which it is inflicted on the worker, fairly be viewed as a fact of life of industrial employment, or is it rather plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act?

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' compensation for their initial work-related occupational diseases must fall. Although defendants' conduct in knowingly exposing plaintiffs to asbestos clearly amounts to deliberately taking risks with employees' 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 intentional wrong resulting in avoidance of the exclusive-remedy bar of the compensation statute. In the face of the legislature's awareness of occupational 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 compensable under the terms of the Compensation Act and not actionable in an additional civil suit.

We acknowledge a certain anomaly in the notion that employees who are severely ill as a result of their exposure to asbestos in their place of employment 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 regarding any ineffectiveness in the current compensation 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 community. In 1983 the legislature enacted the "Worker and Community Right to Know" Act, L. 1983, c. 315, codified at N.J.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 conditions."^[3] The Act imposes disclosure requirements on employers within the manufacturing sector and outside the manufacturing sector in respect of both "workplace" and "environmental" substances. Under the Act every employer, as defined by the Act, must establish an educational and training program for his employees, designed

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-13.]

*181 Moreover, any employee is entitled to a copy of a workplace survey, hazardous substance fact sheet, or, where applicable, an environmental survey 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 jurisdiction 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 Protection or Health for failure to enforce the Act. N.J.S.A. 34:5A-23. The Commissioners of the foregoing Departments are given broad enforcement powers, including the imposition of substantial penalties. N.J.S.A. 34:5A-31.

We conclude, therefore, that the legislature must have made a studied decision to address the problems associated with hazardous substances in the workplace in some manner other than simply expanding the system of workers' compensation. Surely that legislative determination was a reasonable one. Despite the fact that in some instances it is an obviously unattractive solution to preclude workers such as are represented by the plaintiffs before us from suing at common law for full reparation for their initial illnesses, the express terms and underlying purposes of the Compensation Act compel that result. In the absence of constitutional defects we must enforce the legislative will. Count one of plaintiffs' complaints was properly dismissed.

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 employees from leaving the workforce, defendants fraudulently 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 although 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.

These allegations go well beyond failing to warn of potentially-dangerous conditions or intentionally exposing workers to the risks of disease. There is a difference between, on the one hand, tolerating in the workplace conditions that will result in a certain number of injuries or illnesses, and, on the other, actively misleading the employees who have already fallen 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 defendants' corporate strategy of concealing diseases discovered 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 themselves out as acting in plaintiffs' best interests. The legislature, in passing the Compensation Act, could not have intended to insulate such conduct from tort liability. We therefore conclude that plaintiffs' allegations that defendants fraudulently concealed knowledge of already-contracted diseases are sufficient 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 cognizable 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 existing 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), despite its being *183 criticized in a minority opinion as representing counter-productive public policy. Id. at 479-80, 612 P.2d at 956-57, 165 Cal. Rptr. at 866-67, (Clark, J., dissenting). We recognize, of course, that California's statute is completely different from ours, providing as it does for increased recovery when the employer's misconduct is determined to have been "serious and willful." But the