Aldo Rubeis, et al. v. The Aqua Club, Inc., d/b/a V.I.P. Tennis & Beach Club, Ltd., et al.

An employer's liability for an on-the-job injury is
generally limited to workers' compensation benefits, but when an
employee suffers a "grave injury" the employer also may be liable
to third parties for indemnification or contribution. In the
three actions before us, we are again asked to define the scope
of an enumerated "grave injury" in Workers' Compensation Law §
11--this time "an acquired injury to the brain caused by an

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external physical force resulting in permanent total disability."
We hold that a brain injury results in "permanent total
disability" under section 11 when the evidence establishes that
the injured worker is no longer employable in any capacity.
Rubeis v The Aqua Club, Inc.

Aldo Rubeis, an ironworker, sustained a brain injury
when he fell approximately 19 feet from a ladder while installing
a steel cupola at the Aqua Club. At the time of the accident,
Rubeis was employed by Venezia Iron Works, Inc. Rubeis commenced
a personal injury action against Aqua Club, which then impleaded
Venezia alleging a cause of action for common law indemnification
and contribution. Aqua Club claimed that plaintiff sustained a
grave injury under Workers' Compensation Law § 11 and thus
plaintiff's employer was liable.

At the close of the liability phase of trial, the court
granted Aqua Club judgment on its claim against Venezia, subject
to resolution of the question whether plaintiff sustained a grave
injury, which it submitted to the jury. The court instructed the
jury that

"[i]n order to prove a grave injury . . . the
medical evidence must indicate that . . .
plaintiff is unable to return to any
employment. You may consider plaintiff's
ability to obtain other employment and should
also consider his ability to perform the
usual and customary tasks of ordinary day-today
living, such as whether he is physically
independent and ambulatory, in determining
whether or not plaintiff suffered a grave
injury. . ."

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The jury found that the plaintiff sustained a grave
injury and awarded him approximately $3.2 million in damages.
The trial court denied Venezia's motion to set aside the verdict,
but the Appellate Division, Second Department, reversed and
granted the motion. Relying on Second Department case law
holding that brain injury does not result in permanent total
disability where the employee is able to perform day-to-day
functions, the Appellate Division concluded that plaintiff had
not suffered a grave injury under Workers' Compensation Law § 11.
Largo-Chicaiza v Westchseter Scaffold Equipment Corp.

Jorge Largo-Chicaiza, a day-laborer, sustained a brain
injury when he fell from the roof of a six-story house owned by
Peter and Catherine McCaffrey while removing shingles. At the
time of the accident, he was employed by the general contractor,
Salvatore Sanzo. Largo-Chicaiza brought a personal injury action
against the McCaffreys, Sanzo and the roofing subcontractors. In
their answers, defendants each sought dismissal of the complaint
and, in the alternative, cross-claimed for indemnification and
contribution against Sanzo pursuant to Workers' Compensation Law
§ 11.

Sanzo sought summary judgment against plaintiff and
dismissal of all cross-claims against him on the ground that he
was plaintiff's employer, and plaintiff's sole recovery against
him were therefore workers' compensation benefits. The trial
court granted Sanzo's motion for summary judgment as against

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plaintiff, but denied his motion seeking to prohibit impleader
actions against him and converted defendants' cross-claims into
third-party actions against Sanzo. Citing Way v Grantling (289
AD2d 790, 792 [3d Dept 2001]) for the proposition that permanent
total disability relates to the injured party's employability,
not ability to function in society, the trial court concluded
that the evidence raised material questions of fact. The
Appellate Division, Second Department, reversed and, citing
Rubeis, concluded that plaintiff's injuries were not a grave
injury under the Workers' Compensation Law § 11.
Knauer v Anderson

Thomas Knauer, an electrician employed by Knauer
Electric, sustained a brain injury when he fell 17 feet from a
ladder and crashed headfirst onto a gravel floor. Knauer
commenced a personal injury action against the general contractor
and the property owner. The defendants then brought a thirdparty
action against plaintiff's employer for indemnification.

The trial court denied the employer's motion for summary
judgment, finding a triable issue of fact regarding whether
plaintiff sustained a grave injury.

After trial, the court charged the jury that permanent
total disability means permanent total disability from employment
and does not require that plaintiff lack all capacity to perform
personal or household activities. The jury found in plaintiff's
favor, awarding him $11 million, and the Appellate Division,

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Fourth Department, affirmed, relying on Way. The court reasoned,
"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 modern a society" (2 AD3d 1314, 1315 [4th Dept 2004] [internal
quotations omitted]).

We granted leave to address this split among
Departments on the meaning of "permanent total disability" under
Workers' Compensation Law § 11.

Analysis

Workers' Compensation Law section 11 provides:

"An employer shall not be liable for
contribution or indemnity to any third person
based upon liability for injuries sustained
by an employee acting within the scope of his
or her employment for such employer unless
such third person proves through competent
medical evidence that such employee has
sustained a 'grave injury' which shall mean
only one or more of the following: death,
permanent and total loss of use or amputation
of an arm, leg, hand or foot, loss of
multiple fingers, loss of multiple toes,
paraplegia or quadriplegia, total and
permanent blindness, total and permanent
deafness, loss of nose, loss of ear,
permanent and severe facial disfigurement,
loss of an index finger or an acquired injury
to the brain caused by an external physical
force resulting in permanent total
disability."

Section 11 was enacted in 1996 as part of a
comprehensive reform intended to reduce costs for employers while
also protecting the interests of injured workers (Omnibus

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Workers' Compensation Reform Act of 1996, L 1996, ch 635;
Governor's Mem approving L 1996, ch 635, Bill Jacket at 54).
Before that, New York State stood alone in freely allowing a
defendant in a personal injury action brought by an employee
injured on the job to seek indemnification or contribution from
the employer. Central to the reform was immunity from tort
liability for employers who provide workers' compensation
coverage by exposing employers to third-party liability "only in
cases involving narrowly defined 'grave' injuries" (Gov Mem in
Supp, Bill Jacket at 55 [emphasis in original]). The injuries
enumerated as grave were "deliberately both narrowly and
completely described. The list is exhaustive, not illustrative:
it is not intended to be extended absent further legislative
action" (id.).

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 [2001]), 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 [2002]), we concluded that
loss of a thumb is not "permanent and total loss of use" of a
hand, and thus not a grave injury.

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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-today
functions (see Schuler v Kings Plaza Shopping Ctr. and
Marina, Inc., 294 AD2d 556, 559 [2d Dept 2002] [no grave injury

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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 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.

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.

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* "[P]ermanent total disability" is defined in section 15
(1)--which authorizes schedule compensation awards based on a
worker's wages at the time of the accident--to mean, "[l]oss of
both hands, or both arms, or both feet, or both legs, or both
eyes, or of any two thereof shall, in the absence of conclusive
proof to the contrary, constitute permanent total disability."
The purpose there is, however, different from the section before
us (see Castro, 96 NY2d 398, 401 n 2).

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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, 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, "'[d]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-

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Chicaiza v Westchester Scaffold Equipment Corp., the order of the
Appellate Division should be reversed, with costs, and the thirdparty
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.