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Rubeis v. Aqua Club Inc.11/23/2004
and the term "disability" generally refers to inability to work. Workers' Compensation Law section 201 (9) (A) and Rule and Regulation 363.1, for example, relate disability to inability to perform duties of employment. And section 37 (1), which refers to occupational diseases, states, "' isability' means the state of being disabled from earning full wages at work at which the employee was last employed." The Workers' Compensation Law is about workers and their work.
Finally, we make clear that the test we adopt for permanent total disability under section 11 is one of unemployability in any capacity. "In any capacity" is in keeping with legislative intent and sets a more objectively ascertainable test than equivalent, or competitive, employment.
Accordingly, in Rubeis v The Aqua Club, Inc., the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court, Rockland County, reinstated; in Largo-Chicaiza v Westchester Scaffold Equipment Corp., the order of the Appellate Division should be reversed, with costs, and the third-party complaint reinstated; and in Knauer v Anderson, the judgment appealed from and order of the Appellate Division brought up for review should be affirmed, with costs.
READ, J. (Dissenting):
As between the two plausible definitions for a "permanent total disability" with respect to an acquired brain injury under Workers' Compensation Law § 11, the narrower one is, in my view, more faithful to legislative intent. Accordingly, I dissent, and would affirm the orders in Rubeis and Largo-Chicaiza and reverse the order in Knauer.
The 1996 amendment of Workers' Compensation Law § 11, which created the "grave injury " exception for indemnification or contribution claims against an injured worker's employer (L 1996, ch 635), was heavily negotiated. The particular compromises struck to develop the list of grave injuries are unknowable and, in some cases, the results seem downright peculiar. Why, for example, is the loss of an index finger a grave injury while the loss of a thumb is not? We clearly know, however, what the Legislature intended, which was to curtail third-party actions against the employer of an injured worker sharply and to do so, in large part, by designating grave injuries that were "deliberately both narrowly and completely described," "exhaustive, not illustrative" and "not intended to be extended further absent legislative action" (Castro v United Container Machinery Group, Inc., 96 NY2d 398, 402 , quoting Governor's Mem approving L 1996, ch 635, 1996 NY Legis Ann, at 460).
Despite the Legislature's best efforts to insulate the grave injuries in section 11 from judicial interpretation (and the perceived attendant risk of judicial expansion), the phrase "an acquired injury to the brain caused by an external physical force resulting in permanent total disability" is not self-explanatory. In adopting a standard for permanent total disability essentially requiring unemployability rather than the competing and narrower standard, the inability to perform the usual activities of daily living, the majority deploys tools of statutory interpretation that are tried-and-true, but unsuited to the particular task. Specifically, since many (but certainly not all) of the grave injuries listed in section 11 do not prevent an employee from performing daily life activities, the majority reasons that " imitation of permanent total disability to a vegetative state . . . is too harsh a test, out of step with the balance of the section" (majority op at 8-9). This kind of text-based analysis ill-fits section 11 since the list of grave injuries is, as previously noted, the singular product of legislative
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