137 A.D.2d 34 | N.Y. App. Div. | 1988
OPINION OF THE COURT
The question presented for our determination is whether
The plaintiff Helene Firestein was employed by the defendant Kingsbrook Jewish Medical Center (hereinafter Kings-brook) as a patient accounts clerk. On June 16, 1982, during the course of her employment, she slipped and fell at Kings-brook, and was admitted to its hospital for medical treatment. An X-ray photograph disclosed that she had suffered an intertrochanteric fracture of the right femur, which condition was treated by an open reduction and internal fixation of a screw and plate, and Knowles pins.
Mrs. Firestein alleges that, on July 22, 1982, the defendant Scott, another employee of Kingsbrook, negligently caused "the plaintiff [sic] to be precipitated to [a] wheelchair with undue force”. This negligent act allegedly resulted in a rein-jury of the plaintiff’s hip. It is alleged that the previously inserted Knowles pins and compression screw and plate had to be removed, and that Mrs. Firestein then had to undergo a hip replacement.
Mrs. Firestein applied for, has received and continues to receive, workers’ compensation benefits. It is undisputed that these benefits have been computed so as to provide compensation for all of the injuries which were suffered by Mrs. Firestein because of her work-related accident; that is, the scope of the workers’ compensation benefits includes not only the injury originally suffered by Mrs. Firestein on June 16, 1982, but also the aggravation, or new injury, which occurred on July 22, 1982, and which would not have occurred but for the original work-related accident.
Mrs. Firestein commenced this action against Kingsbrook and Scott by the service of a summons and complaint. The complaint refers only to the incident of July 22, 1982. The defendants Kingsbrook and Scott each appeared and answered separately; in neither appellant’s original answer was the defense of the exclusivity of workers’ compensation asserted.
The Supreme Court, Kings County, denied the motion and the cross motion in a decision and order (one paper) dated December 2, 1986. These appeals followed.
It is well settled that a person who is injured in the course of his or her employment and who later suffers an aggravation of this injury due to medical malpractice has a remedy against his employer under the Workers’ Compensation Law, both as a result of the original injury and as a result of the malpractice (Matter of Parchefsky v Kroll Bros., 267 NY 410). In Matter of Parchefsky v Kroll Bros. (supra, at 417), the court stated that "[cjompensation for the original injury includes the ultimate results of the injury, though the injury has been aggravated by intervening malpractice”. In the present case, if Mrs. Firestein had been treated at a different hospital, and if she had suffered a similar aggravation of her injury as the result of the negligence of some other person, who was not a coemployee, there is no question that the aggravation of the initial injury would be compensable.
The payment of compensation under the rule of the Parchefsky case (supra) is not dependent on whether the subsequent aggravation of the original injury occurred within the scope of the claimant’s employment. Rather, the plaintiff is entitled to compensation for his or her total disability provided that the original injury was work related, and further provided that "the chain of causation between accidental injury and ultimate disability remains unbroken” (Matter of Parchefsky v Kroll Bros., supra, at 412).
It was recognized in Parchefsky (supra) that the entitlement of an injured employee to workers’ compensation benefits, inclusive of damages for subsequent medical malpractice, did pose the risk of an unjust double recovery should such an employee also be permitted to recover in his action for damages against the subsequent tort-feasor. This risk was obviated, however, by the terms of the then extant Workers’ Compensation Law § 29, pursuant to which the acceptance of
Although Workers’ Compensation Law § 29 has since been amended so as to alter the mechanism by which a double recovery in cases such as this is prevented, the Parchefsky rule that workers’ compensation covers not only the original work-related injury but any aggravation thereof, is still valid. The Court of Appeals has reaffirmed the rule that: "Where * * * the aggravation injuries are the direct consequence of the initial compensable injury and the chain of causation between the accidental injury and the ultimate disability remains unbroken, an injured employee is entitled to the statutory compensation for the ultimate disability so resulting from the initial injury” (Matter of Roach v Hastings Plastics Corp., 57 NY2d 293, 296).
The current provisions of Workers’ Compensation Law § 29 no longer provide for an assignment by the injured employee of his cause of action against a third party where the injured employee accepts workers’ compensation. Instead, the injured employee may accept workers’ compensation and also bring an action against the third-party tort-feasor, and the party responsible for the payment of compensation is entitled to a lien on whatever recovery there might be in the third-party action (see, Workers’ Compensation Law § 29 [1], amended by L 1937, ch 684; Hession v Sari Corp., 283 NY 262).
In Matter of Roach v Hastings Plastics Corp. (supra), the Court of Appeals held that the settlement by an injured employee of his action against successive third-party tort-feasors, without the consent of the party responsible for workers’ compensation payments, relieves that party of any responsibility to make workers’ compensation payments attributable to the injuries caused by the postaccident malpractice. However,
Pursuant to the reasoning of the Roach and Parchefsky cases (supra), no risk of double recovery is presented by the plaintiffs’ pursuit of a common-law action for damages against the defendants Kingsbrook and Scott. Any recovery in this action will be subject to a workers’ compensation lien, so that the possibility of duplicative recovery for the same injuries is precluded.
The appellants argue that because Kingsbrook was Helene Firestein’s employer and because Scott was her coemployee, they are shielded from liability at common law. This argument is meritless for the basic reason that Mrs. Firestein’s injuries alleged to have been caused on July 22, 1982, did not arise in the course of her employment. Where an employee of a hospital is admitted as a patient, and is negligently treated at that hospital, the injuries which result from such mistreatment have been held not to arise out of the injured person’s employment, so that an action at law to recover for such injuries may be brought (see, Sivertsen v State of New York, 19 NY2d 698; Volk v City of New York, 284 NY 279; Milashouskas v Mercy Hosp., 64 AD2d 978; Stevens v County of Nassau, 56 AD2d 866). These cases are to be distinguished from those in which malpractice is committed by a coemployee of the plaintiff, and where the medical services rendered by that coemployee were not available to the public, but were exclusively available to coemployees, so that a nexus exists between the plaintiff’s employment and the occurrence of the malpractice (see, Golini v Nachtigall, 38 NY2d 745; Garcia v Iserson, 33 NY2d 421).
At the core of the appellants’ arguments is their literal construction of Workers’ Compensation Law §29 (6), which provides that "[t]he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in case of death his dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ”. No court has ever interpreted this statute so as to preclude a party, who is initially injured in the course of his employment, from recovering in an action at law for the additional damages caused by an aggravation of the injury which occurs outside the scope of his employment, solely on the ground that the aggravation was caused by a coemployee.
This interpretation was, in fact, previously rejected by this
The appellants also suggest that to permit Mrs. Firestein to recover damages for the injuries attributable to the alleged malpractice which occurred on July 22, 1982, would constitute an acceptance of the "dual capacity doctrine” which was squarely rejected by the Court of Appeals in Billy v Consolidated Mach. Tool Corp. (51 NY2d 152, rearg denied 52 NY2d 829). Under the dual capacity doctrine, an employee who is injured during the course of his employment may sue his employer for money damages if the employer " 'occupies * * * a second capacity that confers on him obligations independent of those imposed on him as employer’ ” (Billy v Consolidated Mach. Tool Corp., supra, at 158, quoting from 2A Larson, Workmen’s Compensation Law § 72.80, at 14-112). Once again, the fundamental distinction in the present case is that the injuries for which Mrs. Firestein seeks compensation in a court of law did not occur within the scope of her employment. To allow the plaintiff to pursue her common-law right to recover compensation for the injuries sustained by her as a result of medical malpractice which did not, in any sense, occur during the course of her employment, does not constitute approval of the dual capacity doctrine.
The appellants also argue that we may not make the finding that the injury which occurred on July 22, 1982, did not occur within the scope of Mrs. Firestein’s employment. It is argued that this is a question which may be decided only by the Workers’ Compensation Board, which body has, in fact, determined that that injury did arise within the scope of her employment.
We would also note, were it necessary for the Board to decide whether the aggravation of Mrs. Firestein’s injury occurred within the scope of her employment, and were the Board to decide that such aggravation did occur within the scope of employment, that such a finding would be completely arbitrary and irrational. When Mrs. Firestein suffered the aggravation of her hip injury, she had already been hospitalized for several weeks, and was not in the least sense acting within the scope of her employment. Since "it may be determined, as a matter of law, that her injury on July 22, 1982, was not in the course of her employment, this is not a case "where the availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law” (O’Rourke v Long, supra, at 228), and so deference to the Workers’ Compensation Board is unnecessary. Nor is there present in this case any question of fact or any mixed question of fact and law with respect to whether workers’ compensation is Mrs. Firestein’s exclusive remedy under the rule of Garcia v Iserson (33 NY2d 421, supra) and Golini v Nachtigall (38 NY2d 745, supra) (cf., Botwinick v Ogden, 59 NY2d 909, supra). This is so because the record is completely devoid of any proof "that the medical services
For the foregoing reasons, we agree with the Supreme Court, Kings County, that there is no merit to any defense based on the exclusivity of workers’ compensation. Accordingly, the order appealed from should be affirmed.
Mollen, P. J., Lawrence and Kooper, JJ., concur.
Ordered that the order is affirmed, with one bill of costs.
