Kevin G. Faley and Christopher R. Invidiata, New York Law Journal

March 31, 2017

On March 24, 1911, the New York Court of Appeals declared the state's compulsory Workers Compensation law to be unconstitutional. The very next day, the Triangle Shirtwaist Factory fire caused the deaths of 146 garment workers. After an arduous fight through the courts, twenty three of the victims' families were awarded $75.00 each. In response to this, in 1914 the New York State Legislature created the Workers Compensation Board, which in one form or another has now regulated many aspects of the practice of law in New York state for over 100 years. 

In 1996, in an attempt to balance the scales and reduce out of control insurance premiums, the New York Employment, Safety and Security Act was passed, introducing significant reforms to the workers' compensation system. One such measure that has been the subject of litigation ever since it was enacted was Workers Compensation Law §11's "grave injury" threshold for third party lawsuits against employers. The new statute made it clear that a plaintiff's employer could only be found liable for contribution or indemnity to any third person for the injuries of their employee when those injuries fell within a set of explicitly described "grave injuries," including among others "an acquired injury to the brain caused by an external physical force resulting in permanent total disability." That provision has led to years of litigation to attempt to define what actually constituted a permanent total disability" in the context of a traumatic brain injury or TBI.

Following the amendments to the law, the appellate departments each approached the issue with differing methodologies. The first court to consider the question was the First department in Barbieri v. Mount Sinai Hosp., 264 A.D.2d 1 (1st Dep't 2000). Plaintiff Barbieri fell through an unmarked access panel, sustaining a "concussion, arthritis, amnesia and other memory dysfunctions and a brain lesion, allegedly resulting in permanent disability." When the defendants sought third party recovery from the

plaintiff's employer, the employer alleged that the plaintiff's injury, while serious, was not "grave" pursuant to the statute, rendering them immune to suit. The trial court agreed, and the First Department affirmed: 

[I]n order to satisfy section 11, the cognitive injuries must constitute a "permanent total disability." Although the complaint and bill of particulars allege the permanency of the injuries, total disability is not alleged … . The medical evidence indicates periods of disorientation and some dementia, particularly in short term memory, although plaintiff's long term memory seems intact. Notably, the evaluation indicated that plaintiff is "physically independent and ambulatory" and during his evaluation seemed cognitively logical and goal oriented, albeit with some apparent slowness of speech and some distractibility. However, his cognitive abilities did not seem especially inconsistent with his

academic history, although he underperformed on some neurological tests, presumably as a consequence of trauma to the head. Nevertheless, this does not, on its face, make out permanent and total disability.

Id. at 67 (1st Dep't 2000) (internal citations omitted).

While not setting out an explicit standard, the First Department took a "totality of the circumstances" approach, taking notice of the plaintiff's physical independence and intact long term memory and finding that the disability was not "total." This unclear standard opened the door to a subjective consideration rather than laying down an objective standard.

The following year, the Second Department came to its own conclusion with a similar line of reasoning. In Dunn v. Smithtown Bancorp, 286 A.D.2d 701, 70203 (2d Dep't 2001), plaintiff Dunn allegedly sustained a brain injury causing "cognitive deficits, mild expressive language deficits, and impaired problem solving ability." With little analysis, the Second Department held that these assertions did not fall within the enumerated injuries in §11 and that recovery from the employer was disallowed.

That same year, the Third Department, looking for a more objective approach to the question, arrived at a different standard. In the matter of Way v. Grantling, 289 A.D.2d 790, 79293 (3d Dep't 2001), the plaintiff alleged a traumatic brain injury that left him "'permanently disabled … from competitive employment' in even the most menial of tasks." The court found this to raise a question of fact as to whether Dunn's injuries constituted a "permanent and total disability," holding that the Barbieri decision did not mandate a contrary result.

In 2002, the Fourth Department in Sergeant v. Murphy Family Trust, 292 A.D.2d 761, 762 (4th Dep't 2002) held without analysis that plaintiff's subjective deposition testimony that he experienced "memory loss, anxiety, vision deficits, forgetfulness and personality changes" was sufficient to raise an issue as to whether the injuries alleged constituted a permanent and total disability. 

Meanwhile, the Second Department's ruling in the 2003 matter of Rubeis v. Aqua Club, 305 A.D.2d 656, 65758 (2d Dep't 2003) held to the First Department's approach. The Department held implicitly that a plaintiff who was "able to dress, shower, and feed himself and to drive a vehicle" was by definition not "totally disabled," charging the jury to find that the injury was "grave" only if the plaintiff could not "perform the usual and customary tasks of ordinary day to day living." Id. at 658.

That determination was reinforced in LargoChicaiza v. Westchester Scaffold Equip., 5 A.D.3d 355 (2d Dep't 2004), where again they were faced with a plaintiff who was capable of conducting his activities of daily life, though unable to obtain employment. The Court found that "the plaintiff's injuries, although clearly serious, did not rise to the level of 'grave' injuries within the meaning of Workers' Compensation Law §11." Id. (citing Rubeis).

Shortly after the Second Department's Rubeis decision, the Fourth Department heard the matter of Knauer v. Anderson, 2 A.D.3d 1314 (4th Dep't 2003), wherein the court was confronted with the opposing views of the Second Department in Rubeis, and the Third Department in Way v. Grantling. The Fourth Department came in on the side of the Third Department's view:

Knauer Electric contends that we should follow the decision of the Second Department in Rubeis v Aqua Club (305 A.D.2d 656, 658, 761 N.Y.S.2d 659 [2003]), wherein that Court determined that the term means total inability "to engage in daytoday functions." Defendants contend, however, that the term means total disability from employment, relying on the decision of the Third Department in Way v Grantling (289 A.D.2d 790, 792, 736 N.Y.S.2d 424 [2001]). The list of injuries set forth in section 11 "'is exhaustive, not illustrative; it is not intended to be extended absent further legislative action'" (Castro v United Container Mach. Group, 96 N.Y.2d 398, 402, 761 N.E.2d 1014, 736 N.Y.S.2d 287 [2001], quoting Governor's Mem approving L 1996, ch 635, 1996 NY Legis Ann, at 460). We agree with the analysis of the Third Department in Way (289 A.D.2d at 792) that evidence that a plaintiff has suffered the specified injury to the brain resulting in permanent total disability relates to his or her permanent total disability from employment, not to his or her "ability to otherwise care for himself or herself and function in a modern society."

Knauer, 2 A.D.3d at 1315.

Faced with a division between the departments, in 2004 the Court of Appeals stepped in and granted leave to appeal the Second Department's determinations in Rubeis and LargoChicaiza, and the Fourth Department's contrary decision in Knauer. Hearing all three cases under Rubeis v. Aqua Club, 3 N.Y.3d 408 (2004), the court explicitly overruled Barbieri in favor of the objective standard utilized by the Third Department in Way and the Fourth Department in Knauer:

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 Departments' standard essentially requiring unemployability. In choosing between these alternatives, our  guiding principle is, of course, to implement the intent of the Legislature—in this case to narrow tort exposure for employers while also protecting the interests of injured workers—by 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.

Rubeis, 3 N.Y.3d 408, 416.

Putting the focus of their determination on employability rather than mere  consciousness, the Court of Appeals' approach was in line with the stated purposes and ideals behind the Workers Compensation Law.

The Workers' Compensation Law is about workers and their work. … 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.

Rubeis, 3 N.Y.3d 408, 41718 (emphasis in the original).

Thus as of 2004, the appellate departments had a rational and objective standard to apply to cases of traumatic brain injuries under §11: A plaintiff who is capable of holding down employment in any capacity despite their injury is not "gravely injured," and their employer shall remain immune to suit. Although not explicitly stated, the appellate divisions have generally interpreted this standard to apply only to brain injuries. See, e.g., Fleischman v. Peacock Water Co., 51 A.D.3d 1203 (3d Dep't 2008).

The standard is an objective one, requiring the plaintiff to be deemed medically unfit to perform any sort of work by reason of the TBI. Merely alleging "certain brain conditions, including headaches and postconcussion syndrome," would not be sufficient to deem the injury "grave," Purcell v. Visiting Nurses Found., 127 A.D.3d 572, 574 (1st Dep't 2015); nor would evidence that the "accident had caused various brain conditions including seizures, persistent headaches, and depression" suffice to render the employer immune. Aramburu v. Midtown W.B., 126 A.D.3d 498 (1st Dep't 2015); nor would "daily headaches and frustrating loss of focus." Uddin v. 950 WoodyCrest, 2015 N.Y. Misc. LEXIS 3734 (N.Y. Sup. Ct. Sept. 29, 2015).

Note that the Rubeis standard is quiet on the subject of permanency. The First Department picked up on this in Galindo v. Dorchester Tower Condominium, 56 A.D.3d 285 (1st Dep't 2008), where the court expressly rejected testimony of the expert retained by the plaintiff's employer that with continual improvement the plaintiff may be a candidate for a brain injury work program in the future.

The Second Department differed, however, in the matter of Miranda v. Norstar Bldg., 79 A.D.3d 42, 4849 (3d Dep't 2010). The Miranda court was given the affidavit of a defense expert who "opined that plaintiff's abilities would continue to improve" and that as such he should "perform jobs that involve routine repetitive work" with certain significant limitations. The court found this sufficient to create a question of fact as to the grave nature of the alleged brain injury. As of this writing, the Court of Appeals has not yet addressed this discrepancy between the departments.

The New York State Court of Appeals has repeatedly stated that the list of injuries given in §11 "is exhaustive, not illustrative; it is not intended to be extended absent further legislative action." Castro v. United Container Mach. Group, 96 N.Y.2d 398, 402 (2001). Thus, the courts' utilization of a claimant's ability to sustain employment in any capacity as the appropriate standard provides an objective and utilitarian approach, preferable to requiring a subjective weighing of the relative merits of various forms of proposed employment.

The courts are not finders of fact, nor are they generally permitted to make subjective assessments of a witness' abilities. An objective assessment of a claimant's absolute employability provides a clear brightline rule upon which the courts may rely. The prior subjective approach effectively mandated a jury trial in many TBI matters which otherwise could be disposed of as a matter of law.

Kevin G. Faley is a partner and Christopher R. Invidiata is an associate of Morris Duffy Alonso & Faley.

Reprinted with permission from the March 31, 2017 edition of the New York Law Journal © 2017 ALM Media Properties, LLC. All rights reserved.

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