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Rubeis v. Aqua Club Inc.11/23/2004
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This legislative directive has consistently guided our determination as to whether a particular injury is a grave injury within the statute. In Castro v United Container Machinery Group, Inc., (96 NY2d 398 ), for example, we held that the term "'loss of multiple fingers' cannot sensibly be read to mean partial loss of multiple fingers" (id. at 401). The word finger in the statute means the whole finger, not just its tip. And in Meis v ELO Org., LLC (97 NY2d 714, 716 ), we concluded that loss of a thumb is not "permanent and total loss of use" of a hand, and thus not a grave injury.
In Castro and Meis, the words of the statute alone answered the question before us. Partial loss of multiple fingers, and loss of a thumb, simply do not fit the clear literal terms of the statute. The statutory words "an acquired injury to the brain caused by an external physical force resulting in permanent total disability," however, do not alone answer the question whether a particular injury is a grave injury. That phrase requires interpretation.
The definition of "permanent total disability" within section 11 has, moreover, divided the Appellate Divisions. The Third and Fourth Departments conclude that the permanent total disability envisioned by the section "relates to the injured party's employability and not his or her ability to otherwise care for himself or herself and function in a modern society" (Way v Grantling, 289 AD2d 790, 792 [3d Dept 2001]; Knauer v Anderson, 2 AD3d 1314 [4th Dept 2003]). In Way, the Third Department found a material issue of fact as to permanent total disability when evidence suggested that the employee's postconcussive syndrome permanently disabled him from competitive employment in even the most menial tasks, and where he had been awarded Social Security disability benefits. When defining "permanent total disability" the Second Department, by contrast, has focused on the injured party's ability to engage in day-to-day functions (see Schuler v Kings Plaza Shopping Ctr. and Marina, Inc., 294 AD2d 556, 559 [2d Dept 2002] [no grave injury where injured plaintiff managed a limited social agenda and was able to, among other things, dress and feed himself and handle simple arithmetic]).
These appeals in fact place before us two possible definitions of permanent total disability: the Second Department's standard essentially requiring a vegetative state, and the Third and Fourth Department's standard essentially requiring unemployability. In choosing between these alternatives, our guiding principle is, of course, to implement the intent of the Legislaturein this case to narrow tort exposure for employers while also protecting the interests of injured workersby considering both the language used and objects to be accomplished. While both definitions are plausible, the second, in our view, better fits section 11 and better effectuates the legislative purposes.
First, we consider the choices within the context of section 11 itself. The Legislature in section 11 has itself defined a grave injury to include "loss of multiple fingers," "loss of multiple toes," "loss of nose," "loss of ear," "permanent and severe facial disfigurement" and "loss of an index finger." None of those enumerated grave injuries has the effect of preventing an employee from performing daily life activities. Limitation of permanent total disability to a vegetative state thus is too harsh a test, out of step with the balance of the section.
Next, we consider the two alternatives within the larger context of the Workers' Compensation Law, where the customary definition of "disability" relates to employment. The Workers' Compensation Law deals with employment benefits,
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