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Rubeis v. Aqua Club Inc.11/23/2004
compromise, and is exhaustive, not illustrative. It is difficult to reason by analogy to the other grave injuries on the list when these are as various as the loss of a finger and quadriplegia.
The majority further observes that the word "disability" generally refers to employment within the "larger context" of the Workers' Compensation Law (majority op at 9). But these employment-related definitions of "disability" appear in provisions of the statute relating to payment of compensation (see e.g. Workers' Compensation Law ยงยง 15 ; 37; 201 ). These provisions bear no relationship to section 11's very different and overriding goal to safeguard employers from impleader except in rare circumstances.
When the Legislature adopted section 11, it intended to retrench an employer's exposure to costly third-party actions, and thereby reduce the employer's insurance premiums and out-of-pocket payments. The Legislature did this by barring third-party actions against employers except in the limited circumstances of a grave injury . As has been pointed out, the 1996 amendment of section 11 to carry out this goal " at best indifferent to the employee, its aim being to protect the employer" (109 Siegel's Practice Review 1, Under Workers' Compensation Reform Act, Loss of Thumb is Held to Mean Loss of Use of Hand, Supporting Impleader of Employer [May 2001]). In light of this goal and the concomitant legislative intent for us to exercise our interpretive function particularly sparingly and narrowly with respect to grave injuries under section 11, I would adopt the more restrictive of the two plausible, and equally workable, definitions for a "permanent total disability" developed by the Appellate Divisions; namely, that a "permanent total disability" with respect to an acquired brain injury means the inability to perform the usual activities of daily living, essentially requiring a vegetative state.
Case No. 142: Order reversed, with costs, and order of Supreme Court, Rockland County, reinstated. Opinion by Chief Judge Kaye.
Judges Smith, Ciparick, Rosenblatt, Graffeo and Smith concur.
Judge Read dissents and votes to affirm in an opinion.
Case No. 185: Order reversed, with costs, and third-party complaint reinstated. Opinion by Chief Judge Kaye. Judges Smith, Ciparick, Rosenblatt, Graffeo and Smith concur. Judge Read dissents and votes to affirm in an opinion.
Case No. 186: Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs. Opinion by Chief Judge Kaye. Judges Smith, Ciparick, Rosenblatt, Graffeo and Smith concur. Judge Read dissents and votes to reverse in an opinion.
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