The court of appeals in Castro strictly construes the list of injuries that qualify as “grave.”

By Terése Burke Wolff, Esq.

In 1996, the Omnibus Workers’ Compensation Reform Act amended Section 11 of the New York Workers’ Compensation Law, thereby restricting third?party contribution claims against employers. Ibarra v. Equipment Control, Inc., 707 N.Y.S.2d 208, 2000 N.Y. Slip Op. 04656 (2d Dept., May 8, 2000). The legislative purpose behind such amendment was to restore the exclusive remedy provisions of Workers’ Compensation, and to eliminate costly third?party actions for employers doing business in New York. Barbieri v. Mount Sinai Hospital, 706 N.Y.S. 2d 8, 11-12 (1st Dept., 2000) (quoting Assembly Mem. in Support, 1996 McKinney’s Session Laws of N.Y. at 2562).

Originally, the law barring employees from suing the employer was designed to assure the employer that as long as it took out appropriate compensation coverage, it was insulated from common law tort liability to the employee. However, through impleader of the employer by another tortfeasor, the employer’s shield from liability became illusory subjecting the employer to “contribution” liability and the employer was in effect still forced to maintain both compensation and tort liability coverage. See SIEGEL’S PRACTICE REVIEW, No. 48, page 4. The Omnibus Bill returns the shield of protection to the employer to curtail those impleader actions. Id.

As amended, Section 11 of the Workers’ Compensation Law states as follows:

An employer shall not be liable for contribution or indemnification to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a “grave injury” . . . .

New York Workers’ Compensation Law § 11.

The statute specifically delineates that a “grave injury” shall include: [D]eath, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.

New York Workers’ Compensation Law § 11; Ibarra V. Equipment Control, Inc., supra at 2; Barbieri v. Mount Sinai Hospital, supra at 11.

Over the past few years, the Appellate Divisions have been wrestling with the application of Section 11 of the Workers Compensation Law. However, the Court of Appeals in Castro v. United Container Machinery Group, attempted to clarify the appropriate Section 11 analysis and held that the injuries listed in Section 11 are narrowly defined and that list must be strictly construed. Castro 96 NY2d 398 (2001).

In Castro, plaintiff alleged loss of five fingertips while operating a die cutting machine. Id. The manufacturer of the machine brought a third party action against plaintiff’s employer. Id. Section 11 of the Workers Compensation Law lists “loss of multiple fingers” as a “grave injury.” Id. The employer moved for summary judgment and argued that plaintiff did not sustain a “grave injury” so as to permit an action against the employer for indemnity or contribution. Id. The Supreme Court denied the motion and the Appellate Division reversed. Id. The Court of Appeals held that an employee’s loss of multiple fingertips does not constitute a “loss of multiple fingers,” and thus does not qualify as a “grave injury.” Id.

In the wake of Castro, the Court of Appeals recently reversed the Appellate Division decision in Meis v. ELO Organization, LLC, decision. The First Department in Meis held that the loss of a thumb was so fundamental to the use of the hand that it was to be construed as the “loss of use of a hand” so as to qualify as a “grave injury.” The Court of Appeals citing Castro stated that Workers’ Compensation Law § 11 does not list the loss of a thumb as a “grave injury,” and refused to permit such a liberal construction. Meis, 97 NY2d 714 (2002). The First Department’s decision was reversed. Id.

We expect to see much more wrestling with the analysis of the “grave injury” standard when such Section 11 language as “permanent total disability” and “total loss of use” are litigated. For now, it appears that the Section 11 list must be construed as exhaustive.