*1 [821 NE2d 292] 788NYS2d Aqua Aldo Rubeis al., Plaintiffs, et v The Club, Inc., Doing Business as V.I.P. Tennis Club, Ltd., & Beach al., et Defendants. The Inc., Third-Party Plaintiff- Appellant, Works, Venezia Iron Inc., Third-Party Defendant-Respondent.

Jorge Largo-Chicaiza, Plaintiff, v Westchester Scaffold Corp. Equipment al., et Defendants. Vermont Slate Roof McCaffrey

Co. al., et Third-Party Plaintiffs, and Peter B. al., et Third-Party Plaintiffs-Appellants, v Salvatore Sanzo, Third-Party Defendant-Respondent. Knauer,

Thomas L. Respondent, Anderson, Diane as Execu trix of Anderson, Sr., William F. al., et Defendants. Diane Anderson, L. as Executrix of Anderson, William F. Sr., et al., Third-Party Plaintiffs, and Services, Inc., B.T.S. Third- Party Plaintiff-Respondent, Knauer, v Ronald A. Jr., Do ing Business as Electric, Knauer Third-Party Defendant- Appellant.

Argued 12, 2004; October decided November

POINTS OF COUNSEL (Steven J. LLP, Lake Success Shaub, Citrin & Ahmuty, Spratt, counsel), for Aqua Simone Ahmuty Christopher first plaintiff-appellant Inc., defendant cate- I. the acquired action. Under above-entitled in Workers’ “grave injury” gory

410

requirement should be deter- employability, mined reference to the worker’s (Castro engage day-to-day functions. v United Org., Container Mach. 96 NY2d 398; Meis v ELO Majewski 714; NY2d v Dist., Broadalbin-Perth Cent. School Way Grantling, 577; NY2d 790; Anderson, 289 AD2d Knauer v Kings Shopping 1314; AD3d Mar., Schuler v Plaza Ctr. & Bancorp, 556; Dunn v 701; Smithtown 286 AD2d Fitz- patrick Bank, v Chase Manhattan AD2d 487; Olszewki Gardens, Park Terrace 128; Cohen, AD2d We’reAssoc. Co. v 148.) Bloom, Stracher & II. the event this Court “employability” controlling concludes that is the standard, then light jury’s finding plaintiff verdict sustained “grave injury” § Aqua under Workers’ Club is entitled to reversal of the Division’s order and (Al- judgment reinstatement of the indemnification in its favor. *3 460.) Eldred, exander v 63 NY2d Albany, Hutter,

Michael J. for defendant- respondent require in the first above-entitled action. I. The “permanent disability” ment of an worker’s total under injury category “grave injury” of in Workers’ §Law 11 must be determined in reference to the engage daily worker’s activities, life’s and where it undisputed, competent proof here, as that the medical shows ability, physical has some mental, on a albeit compared preaccident level, diminished to the worker’s abili “permanent disability” “grave ties, there is no total and thus no (Westchester injury.” Light. County Co. v Westchester Small Corp., Estates 175; Co., 278 NY vDole Dow Chem. 30 NY2d Equipment Kelly Long 143; Control, Ibarra v 13; 268 AD2d v Is. Light. Majewski Co., 25; 31 NY2d v Broadalbin-Perth Cent. Dist., School 577; 91 NY2d Castro v United Container Mach. Group, Org., 96 398; NY2d Meis v 714; ELO 97 NY2d Patrol City People men’s York, Benevolent Assn. v 41 205; New NY2d of City White, v 468; 73 Giuliani, NY2d Council N.Y. v 93 60.) Assuming arguendo NY2d II. that this Court concludes that “permanent disability” solely total is to be determined in refer plaintiffs ability engage employment, ence to a new trial plaintiff on the issue of whether sustained a total employability under that standard must be ordered. (Jayne Fishman, Callahan, & Pearl River F. Mona- Dorfman counsel), third-party plaintiffs-appellants han of in the second above-entitled action. I. There are conflicts the rul-

411 interpreta- on the Departments Division ings (Schuler Shop- v Plaza Kings disability. tion of permanent Bancorp, Smithtown Mar., Dunn v 556; AD2d Ctr. & 294 ping Bank, AD2d Manhattan 285 v Chase 701; Fitzpatrick AD2d 286 Anderson, 2 v Knauer 790; AD2d Grantling, vWay 289 487; 1314.) definition of perma- II. The Second Department’s AD3d (Castro v United Container narrow. is too nent 398.) Jorge Largo-Chicaiza III. Plaintiff Mach. Group, 96 NY2d forth by definitions as set injury utilizing a grave suffered Departments. the Third Fourth (Robert PC., C. Baxter and Sim Smith,

Baxter & Plains White R. counsel), defendant-respondent for third-party Shapiro Division, I. The Appellate action. the second above-entitled the term “permanent has defined correctly Second Department, (Castro Mach. United Container 96 v disability.” Dist., Cent. School v Broadalbin-Perth 398; Majewski NY2d Constr., Trimble v Castle Am. 901; 307 AD2d Aguirre 577; Grantling, vWay 452; AD2d Dayton Corp., v Hawker Co., Knauer Oil 623; AD2d Mid-Valley Tassone v 790; AD2d Ctr. Anderson, Shopping Schuler v Plaza Kings v 1314; AD3d Mar., Bancorp, Dunn v Smithtown 286 AD2d & 556; 294 AD2d 656.) Club, the Appel- 701; Rubeis v Aqua 305 AD2d II. Under Division, interpretation “perma- Department’s late Second did not Largo-Chicaiza, disability,” Jorge nent plaintiff, to Workers’ injury” pursuant sustain “grave (Rubeis Kings Schuler 656; Law 11. Mar., 556; Dunn v Smithtown Plaza Ctr. & 294 AD2d Shopping Hosp., Barbieri v Mount Sinai 701; 286 AD2d Bancorp, *4 1.) Divi- of the Appellate III. the definition using Even (289 AD2d 790 Grantling v Way in sion, Third Department, [2001]) re- disability” total in it held that “permanent which has Jorge Largo-Chicaiza employability, lates to plaintiffs injury.” a “grave sustained Kessler, LLP, Buffalo & Hutter, Underberg

Michael J. Albany, ( defendant- counsel), for third-party Sampson David of J. The requirement I. action. in the third above-entitled appellant under disability” total worker’s “permanent of in Workers’ injury” “grave of injury category to the in reference § 11 must be determined it activities, and where in daily life’s engage to ability worker’s shows medical proof here, competent that undisputed, is on a mental, albeit ability, physical has some abili- diminished worker’s preaccident to the compared level as ties, there is no “permanent total no disability” “grave thus (Westchester Light. Co. v Westchester Small injury.” County Co., Estates Corp., Dole v Dow Chem. 175; 278 NY 30 NY2d Control, Ibarra v Equipment 143; v Kelly Long Is. 13; 268 AD2d Co., Light. v 25; Majewski Broadalbin-Perth Cent. NY2d Dist., School Castro v United Container Mach. 577; 91 NY2d Group, Meis v ELO 398; 96 NY2d Org., Patrol 714; 97 NY2d York, men’s Benevolent Assn. v New City People 205; NY2d of White, Giuliani, Council 468; City N.Y. v 73 NY2d of of 60.) NY2d II. Assuming arguendo that this Court that concludes “permanent disability” is to be determined in solely refer ence to in plaintiffs ability to engage employment, new trial on the issue of whether plaintiff sustained a “permanent disability” under that employability standard must be ordered. (John Vilardo, LLP,

Connors & T. Loss and Terrence Buffalo M. Connors counsel), in respondent the third above- entitled action. I. “Permanent total disability” must encompass in results complete inability to be Way v Grantling, employed any capacity whatsoever. Rubeis v 790; 289 AD2d Largo- 656; 305 AD2d Chicaiza Westchester Equip. Cas- Corp., 355; 5 AD3d Scaffold tro v United Container Mach. Group, Matter of 398; 96 NY2d Co., 217.) Schurick v Bayer 272 NY II. Knauer Electric’s definition proposed radical, unprecedented, contrary what the Legislature intended. Way v Grantling, 289 AD2d Co., Matter 790; Schurick v Bayer Castro v 217; NY 389.) United Container Mach. (Norman Gibson, LLP, Viti, Jr., McAskill & Crosby, B. Buffalo Alan Victor Oliveri and Timothy J. Graber counsel), for third- party plaintiff-respondent the third above-entitled action. Division, Fourth Department, held that correctly the plain meaning as used section reference to “an to the brain” acquired injury relates to a plaintiffs perma- nent from and not or her employment his care for otherwise himself or herself and function in a modern society.

OPINION OF THE COURT *5 Chief Judge Kaye.

An employer’s liability on-the-job injury for an is generally benefits, limited to workers’ an compensation but when em- may “grave injury” employer ployee also be Hable the suffers a parties In the three or contribution. for indemnification to third scope again an asked to define us, before we are actions enumerated Compensation “grave injury” in Workers’ injury § caused to the brain 11—this time “an disability.” permanent physical force external injury total disabil- a results We hold that brain ity” establishes that the evidence under section when any capacity. longer employable in worker is no

Rubeis v Inc. Aqua injury he a when Rubeis, ironworker, Aldo sustained instalhng approximately a steel 19 feet from a ladder while fell cupola Aqua accident, Rubeis at the At the time Club. employed by a Inc. Rubeis commenced Works, Iron was personal injury Venezia impleaded against Aqua Club, then

action which alleging indemnifica- a cause of action for common-law Venezia plaintiff Aqua that tion and Club claimed contribution. injury grave under sustained a plaintiffs employer 11 and Hable. thus was granted liability phase trial, the court

At close subject judgment against Venezia, Club on its claim grave question plaintiff a resolution of the injury, whether sustained jury. which it submitted to the The court instructed jury that injury

“[i]n prove grave a . . . the medical order to plaintiff evidence indicate that . . . is unable must may any employment. consider to return to You plaintiffs ability employment to obtain other abiHty perform the usual also consider his should living, ordinary day-to-day customary tasks independent physically such as whether he is plaintiff ambulatory, determining or not whether grave injury. . . .” suffered injury plaintiff jury sustained found that damages. approximately The trial million in him

awarded $3.2 verdict, but the motion to set aside the court denied Venezia’s granted Department, Appellate reversed Division, Second holding Department Relying case law the motion. on Second does not result that brain day-to-day functions, the is able to

where the plaintiff had not suffered Division concluded grave injury Law 11. under Workers’ *6 Largo-Chicaiza v Westchester Equipment Corp. Scaffold Jorge Largo-Chicaiza, a day-laborer, sustained a brain injury when he fell from the roof of a six-story house owned Peter and Catherine McCaffrey while removing shingles. At the time accident, he was employed by general contractor, Sal- vatore Sanzo. Largo-Chicaiza a brought action personal injury against the McCaffreys, Sanzo and the roofing subcontractors. answers, their defendants each dismissal sought and, in complaint alternative, cross-claimed for indemnifica- tion and contribution against Sanzo to pursuant Law 11.

Sanzo sought summary judgment against and dis- plaintiff missal of all cross claims him against on the that he ground was plaintiffs employer, plaintiffs sole him recovery against were therefore workers’ compensation benefits. The trial court granted Sanzo’s motion for summary judgment against plaintiff, but denied his motion to seeking prohibit impleader actions him against and converted defendants’ cross claims into (289 third-party actions Sanzo. against Citing Way Grantling 2001]) AD2d 792 [3d for the Dept that proposition perma- nent total disability relates to the injured party’s employability, ability function society, the trial court concluded that the evidence raised material questions of fact. The Appellate Division, (305 Second Department, and, reversed citing Rubeis AD2d [2003]), concluded that plaintiffs injuries were not grave injury under Workers’ § 11. Compensation Law

Knauer Anderson Knauer, Thomas an electrician Knauer employed by Electric, sustained a brain when he fell 17 injury feet from a ladder and crashed headfirst onto a gravel floor. Knauer commenced a action personal injury against general contractor and the owner. The property defendants then brought ac- tion against plaintiffs employer indemnification. The trial court denied the employer’s motion for summary judgment, finding triable issue of fact regarding plaintiff whether sustained a grave injury. trial,

After the court charged jury that permanent disability means permanent disability from employment and does not lack all require plaintiff capacity personal or household activities. found jury plaintiffs favor, awarding million, him Division, and the Appellate $11 Way. relying The Court Department, on affirmed, Fourth specified plaintiff has suffered that a reasoned, “evidence disability permanent re- the brain employment, from to his or her lates or herself for himself care (2 her to otherwise not to his or [4th society” 1314, 1315 in a modern and function omitted]). quotation 2003] [internal Dept marks among Departments split on granted leave to address this We *7 meaning under Workers’ Compensation 11.

Analysis provides: Workers’ employer contribution or not liable for “An shall be liability upon indemnity any person third based acting injuries by employee within an for sustained scope employment em- her for such of his or through person proves ployer such third unless employee competent has that such medical evidence only injury’ ‘grave mean which shall sustained a following: permanent death, and one or more of the leg, amputation hand arm, or of an total loss of use fingers, multiple multiple toes, loss of foot, or loss of permanent quadriplegia, paraplegia or permanent deafness, loss of blindness, permanent facial ear, and severe nose, loss of disfigurement, finger or an loss of an index by physical injury an external to the brain caused disability.” resulting permanent in force comprehensive part as of a Section was enacted protect- employers also costs for while reform intended reduce (Omnibus injured ing workers the interests 1996, 635; L ch Governor’s 1996, Act of Reform Approval 54, 1996 NY Jacket, 1996, 635, L ch at Mem, Bill 459). Legis stood alone that, York State Ann, at Before New personal brought injury freely allowing action in a a defendant job by or indemnification on the to seek employer. im- to the reform was Central contribution from the provide liability employers munity who workers’ for from tort coverage by exposing employers li- compensation ‘grave’ narrowly “only involving in cases defined (Governor’s injuries” Approval NY Bill at Mem, Jacket 460). grave injuries Legis were enumerated Ann, at both “deliberately narrowly completely described. The list exhaustive, not illustrative: it is not intended to be extended (id.). absent further action” legislative legislative This directive has consistently guided our determi- nation as to whether a particular is a injury within grave injury Castro v United Container Mach. (96 In statute. Inc. “ [2001]), NY2d 398 we held that example, the term loss multiple fingers’ cannot sensibly be read to mean partial loss of (id. 401). multiple fingers” at The word finger the statute means the just whole Meis ELO finger, its And in tip. (97 Org., LLC 716 [2002]), we concluded that loss of a thumb is not “permanent hand, and total loss of use” of a thus not a grave injury. Meis, Castro the words of the statute alone answered

the question before us. Partial loss of multiple and loss fingers, of a thumb, do simply not fit the clear literal terms of the stat- ute. The “an statutory words acquired injury to the brain caused external force physical total dis- however, do ability,” not alone answer whether question particular is a That requires injury. phrase inter- *8 pretation.

The definition of “permanent within disability” section has, 11 moreover, divided the Appellate Divisions. The Third and Fourth Departments conclude that the permanent total dis- ability envisioned by the section “relates to the injured party’s and or employability not his her to ability otherwise care for or himself herself and in a modern society” (Way v function Grantling, Knauer v Ander- 2001]; 792 [3d Dept 2003]). son, 2 AD3d 1314 In [4th the Dept Way, Third Depart- ment found a material of issue fact as to permanent total dis- when evidence the suggested employee’s postconcussive syndrome disabled him from permanently com- petitive even the employment tasks, most menial and where he had been awarded Social Security benefits. When disability defining the “permanent Second Department, contrast, has focused on the injured ability to party’s engage (see v Kings in day-to-day functions Schuler Plaza Shopping Mar., Inc., Ctr. & 294 AD2d Dept [2d 2002] [no injury injured where a plaintiff managed limited social agenda to, and was able among other dress and feed himself things, arithmetic]). handle simple

These in fact appeals place before us two definitions possible of permanent the Second disability: Department’s stan- the Third and state, essentially vegetative dard requiring essentially requiring unemploy- standard Departments’ Fourth alternatives, our guiding between these choosing ability. Legisla- intent of the is, course, of to the implement principle for while employers to narrow tort exposure ture—in this case workers—by considering the interests of also protecting to While objects accomplished. the used and be language both second, view, in our better are the plausible, both definitions legislative purposes. fits section better effectuates of the context section First, we consider the choices within a grave The section has itself defined Legislature itself. of “loss of fingers,” multiple to include “loss multiple ear,” nose,” “loss of of and severe toes,” “loss of an index None finger.” facial “loss disfigurement” has the effect of injuries preventing enumerated grave those from life activities. Limitation daily employee performing harsh thus is too disability vegetative to state test, out of with balance the section. step larger within Next, we consider two alternatives Law, where the custom context of the Compensation Workers’ to The “disability” definition of relates Work ary employment.* benefits, and with Compensation employment ers’ deals to Work inability refers work. “disability” generally the term (A) (9) of Labor Department Law 201 ers’ (12 NYCRR) relate 363.1, Regulations example, Rules and And sec duties of inability employment. “ diseases, (1), states, ‘[dis tion refers to occupational which from full earning means ability’ being the state disabled which was last employed.” at work at wages workers and their about work. *9 we clear that the test we

Finally, adopt permanent make in any one of unemployability under section is in intent legislative “In with any capacity” keeping is capacity. than test objectively equivalent, and sets more ascertainable or employment. competitive, * (1)—which disability” defined in section 15 “[P]ermanent wages at the compensation based on a worker’s awards authorizes schedule arms, mean, hands, both or both or of both “[l]oss

time of the accident—to shall, in feet, legs, eyes, any the absence both or of two thereof or both or disability.” The contrary, permanent proof conclusive to the constitute (see Castro, is, however, us from the section before purpose there different 2). 398, n Rubeis v Aqua in Inc., the order of the Ap-

Accordingly, pellate Division reversed, should be costs, with and the order of Court, Supreme Rockland in Largo-Chicaiza County, reinstated; v Westchester Equipment Corp., the order of the Appel- Scaffold late Division reversed, should be costs, with and the third-party reinstated; in Anderson, Knauer v complaint the judgment appealed from and order of the Appellate Division brought up for review should affirmed, be with costs. J. (dissenting). As between the two defini- plausible Read,

tions for a “permanent with respect to an under Workers’ Compensation Law 11, the narrower is, one in my view, more faithful to legislative intent. I Accordingly, dissent, and would affirm the in orders Rubeis and Largo-Chicaiza and reverse the order in Knauer.

The 1996 amendment of Workers’ 11, which created the “grave injury” exception for indemnification (L or contribution claims against injured worker’s employer 1996, ch 635, 2),§ was heavily negotiated. The particular struck compromises the develop list of grave injuries are and, unknowable some cases, the results seem downright pe- culiar. Why, for example, is the loss of an index finger grave injury while the loss of a thumb is not? We clearly know, however, what the intended, Legislature which towas curtail actions against the employer of an worker sharply so, and to do in large part, by designating grave injuries that were “deliberately both narrowly and completely de- scribed,” “exhaustive, not illustrative” and “not intended to be (Castro extended further absent v United legislative action” Container Mach. Inc., [2001], 96 NY2d quoting Governor’s Bill Approval Mem, Jacket, L 1996, ch at 55, 460). Legis Ann, NY at

Despite the Legislature’s best efforts to insulate the grave (and injuries section 11 from judicial interpretation perceived attendant of judicial risk expansion), “an phrase acquired injury to the brain caused an external physical force permanent total disability” is not self- explanatory. adopting standard for total disabil- ity essentially requiring unemployability rather than the competing and narrower standard, inability usual activities of daily living, majority tools of deploys statutory that are interpretation tried-and-true, but unsuited to (but the particular task. Specifically, since many certainly all) of injuries listed section 11 do not prevent

419 majority daily performing the activities, life from disability “[Limitation to a of reasons that vegetative step the bal- test, out of with ... is too harsh state 417). (majority op kind of text- at This ance of the section” injuries grave analysis 11 since the list of based ill-fits section legislative singular product previously com- is, noted, the of as promise, to rea- exhaustive, illustrative. It is difficult and is injuries by analogy grave list when these the on the son to other finger quadriplegia. the loss and are as various as of gen “disability” majority The further that the word observes erally employment “larger the context” of the within refers to 417). (majority Compensation op But these at Workers’ “disability” provi employment-related appear in definitions of (see compensation relating payment sions of statute to of the [9]). §§ e.g. Compensation [1]; 37, These Workers’ very provisions relationship no to section ll’s different bear employers impleader overriding goal—to safeguard from and * except in rare circumstances. Legislature adopted section it intended to When the costly employer’s third-party exposure actions, to retrench an thereby employer’s premiums and out-of-pocket reduce the insurance

payments. Legislature by barring The this did against employers except in limited actions cir grave injury. pointed out, cumstances of a As has been the 1996 “[was] carry goal out at amendment of section to this best employee, being protect aim indifferent to the its (Under employer” Act, Loss Reform Supporting Hand, Thumb is Held to Mean Loss Use [May Impleader Employer, Siegel’s Practice Review 2001]). legislative light goal of this In concomitant interpretive particularly exercise intent for us to our function narrowly grave injuries sparingly respect under sec with plausible, adopt tion would the more restrictive of two 11,1 * fact, Legislature In ll’s definition of seems to have borrowed section any injury from Health Law not from other brain Public part, provision section 2741 in the Workers’ Law. relevant acquired injury “an to the brain injury” defines to mean “traumatic disability physical partial or or caused external force added). considerably limited this def- impairment” (emphasis Legislature “impairment” by eliminating “partial” inition the words in section “total,” describe, along “permanent” with adding the word injury. Nothing quality profound required to extent of the word “dis- 27-CC Public Health Law relates section 2741 or article ability” employability. concept of to the *11 equally “permanent workable, definitions for a total dis-

ability” developed by Appellate namely, Divisions; that a respect with inability means the the usual activities of daily living, essentially requiring vegetative state.

Judges G.B. and R.S. Smith, Ciparick, Rosenblatt, Graffeo Judge Judge Smith concur with Chief Read dissents and Kaye; separate opinion. votes to affirm in a In Rubeis v Inc.: Order reversed, etc. Largo-Chicaiza Equipment Corp.: v Westchester Scaffold Order reversed, etc.

Judges G.B. and R.S. Smith, Ciparick, Rosenblatt, Graffeo Judge Judge Smith concur with Chief Read dissents and Kaye; separate opinion. votes to reverse in a Judgment appealed In Knauer v Anderson: from and order of brought up Division affirmed, review with costs.