In the October 21 and 28, 2002 editions of The Daily Record, I discussed the case of Knauer vs. Estate of William F. Anderson, which was the first jury trial in the Fourth Department dealing with the issue of what constitutes “permanent total disability” sufficient to be a “grave injury” under Workers’ Compensation Law §11 (“WCL §11”). WCL§11 was enacted to limit employers’ liability which had long existed under Dole vs. Chemical Company, 30 N.Y.2d 143, 31 N.Y.S2d 382 (1972), and was to limit third party actions to narrowly defined instances in the statute where the injured plaintiff suffered a “grave injury”.
Last week, the Court of Appeals heard oral arguments in the appeal generated by the trial court’s decision in Knauer, combining this appeal with two other cases with a differing result from the Second Department, Rubeis vs. Aqua Club, Inc. and Largo-Chicaiza vs. Westchester Scaffold Equipment. The Court of Appeals will for the first time examine the issue of what the New York State Legislature meant by the phrase “permanent total disability” as it relates to an acquired injury to the brain under WCL§11.
In Knauer, New York Supreme Court Judge Barbara Howe had ruled that the ultimate determination as to whether an injury to the brain had created a “permanent total disability” and a “grave injury” was an issue for the jury. In her instructions to the jury, Justice Howe adopted the language from the Appellate Division, Third Department decision in Way v. Grantling, 289 A.D.2d 790, 736 N.Y.2d 424 (2001) that “permanent total disability” meant
“[P]ermanent and total disability from employment. It does not mean that plaintiff also be permanently and totally lacking the ability to perform personal or household functions or activities.”
The jury returned a verdict in plaintiff’s favor, basing its finding upon the trial court’s definition linking permanent total disability to lack of employability and awarded plaintiff damages totaling approximately $11 million.
On December 31, 2003, the Fourth Department unanimously affirmed the trial court ruling in Knauer vs. Estate of William F. Anderson, 2 A.D.3d 1314 (2003). In so doing, the Fourth Department rejected the Second Department’s May 27, 2003 decision in Rubeis vs. Aqua Club, Inc., 305 A.D.2d 656 (2nd Dept., 2003), thereby creating a split between the Second and Fourth Departments over the proper interpretation of “permanent total disability” and “grave injury”. The Second Department in Rubeis had ruled that the term “permanent total disability” within the meaning of WCL §11 meant a total inability “to engage in day-to-day functions.” The Fourth Department in Knauer, instead relied upon the Third Department decision in Way that a plaintiff suffers a permanent total disability of the brain if he experiences total disability from employment, not to his “ability to otherwise care for himself or herself and function in society.”
On August 31, 2004, the Court of Appeals granted the motion brought by the Third Party Defendant employer in Knauer for leave to appeal the Fourth Department decision and combined it with two other actions, Rubeis and Largo. In Largo-Chicaiza vs. Westchester Scaffold Equipment, 5 A.D3d 355 (2nd. Dept., 2004), the Second Department, relying upon Rubeis, reversed the lower court’s decision denying the third party defendant’s motion for summary judgment and found that plaintiff’s injuries did not rise to the level of grave injuries. These differing results on an issue not previously addressed by the Court of Appeals led it to grant leave to appeal these decisions.
The Court of Appeals has interpreted WCL§11 on two prior occasions. In Castro vs. United Container, 96 N.Y.2d 398 (2001), the Court of Appeals affirmed the Second Department’s decision that the loss of five fingertips did not constitute the “loss of multiple fingers” as defined in WCL §11. In their examination of WCL§11 and its legislative intent, the Court of Appeals acknowledged that although the word “total” was absent from the statutory phrase “loss of multiple fingers,” this did not indicate any intention that what was meant was something less than a total loss of multiple fingers. The Court of Appeals ruled that to do otherwise would be resorting to a forced or unnatural interpretation of the statute. In Meis vs. ELO Organization, 97 N.Y.2d 714 (2002), the Court of Appeals reversed the First Department and ruled that “grave injury” within the meaning of the statute had not occurred with the loss of a thumb since that did not equal the “loss of use of a hand” as defined by the statute. The First Department in Meis had ruled that the thumb was so fundamental to the function of the hand that its loss affectively constituted the loss of use of a hand. The Court of Appeals in a brief two paragraph decision citing its Castro decision rejected this judicial interpretation and expansion of WCL§11. The Court of Appeals ruled that nothing less than the total loss of use or amputation of the hand would qualify as a “grave injury”.
The Court of Appeals is once again faced with the task of divining legislative intent for the term “grave injury.” The Court must decide whether to judicially define “permanent total disability” in a manner consistent with the decisions in Castro and Meis and strictly apply the statutory definition to mean nothing less than a total permanent disability or create a standard based upon the injured party’s inability to work. However, if the Court of Appeals opens the door to a definition involving some “loss of employability”, it must then find a definition that will not create issues for future appeals.
If employability becomes the standard to measure “permanent total disability”, would it then only require proof of the inability to return to the injured party’s former employment? Would it instead mean an inability to return to any full-time employment? If the injured party has the ability to perform part-time employment different from that prior to the accident, is that enough employment to deny a finding of permanent total disability? Do you consider the difference in income that would be derived from the new employment as compared to the employment at the time of the accident? We will very soon know the answers to these questions and the Court of Appeals’ decision will impact third party litigation involving traumatic injuries to the brain and perhaps other WCL §11 claims for years to come.