|
'Grave Injury' Is Nothing But the Whole Finger
By Barbara D. Goldberg & Christopher Simone
Recently, in Castro v. United Container Machinery Corp.,1 the Court of Appeals confirmed that the "grave injury" provisions of Workers' Compensation Law § 11 must be construed narrowly and strictly according to the statute's express terms and as clearly intended by the legislature. The particular provision of § 11 at issue was the "loss of multiple fingers". The Court held, in no uncertain terms, that such provision means the loss of the "whole" finger, not just its tip.
The authors represented the third-party defendant Southern Container Corp. on appeal.
Section 11 of N.Y. Workers' Compensation Law, as amended in 1996,2 provides that an employer of an injured worker shall not be liable to a third person for contribution or common law indemnity, unless the third person proves, through competent medical evidence, that the worker has sustained a "grave injury." The statute defines a "grave injury" as:
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.
The plaintiff, Marvin Castro, commenced a products liability action against United Container Machinery Corp., the manufacturer of a cardboard die cutting machine that severed the distal-most tips of five of his fingers (two from his right hand, three from his left) in a work-site incident. United then commenced a third-party action for contribution and indemnification against the plaintiff's employer, Southern Container Corp. Southern moved to dismiss the third-party complaint as barred by WCL § 11; United countered that the plaintiff sustained the "loss of multiple fingers".
The Supreme Court, finding "questions of fact regarding the extent and nature of plaintiff's 'grave injury'", denied Southern's motion, but on appeal the Appellate Division, Second Department reversed and dismissed United's third-party complaint.3
The Second Department held that based on the statutory language and the legislative history and purpose behind § 11, the loss of fingertips did not constitute the "loss of multiple fingers", and thus, the plaintiff did not sustain a "grave injury".4
The Court of Appeals subsequently granted United leave to appeal.5 On appeal, United argued that the injury satisfied § 11's "loss of multiple fingers" criterion, despite the statute's silence on the issue of partial losses. United also contended that the question of whether the partial loss of multiple fingertips constituted a "grave injury" is a case-by-case question for the trier of fact. Lastly, United asserted that Southern's showing merely that the plaintiff lost the tips of five fingers was insufficient to satisfy its burden on summary judgment.6
A Finger is a Finger
In a unanimous opinion by Judge Ciparick, the Court rejected United's position as stemming from "a misguided reading of the requirements of Workers' Compensation Law § 11". The Court held that "based on the plain language and legislative history of Workers' Compensation Law § 11, plaintiff's injury cannot be classified as grave."7 Specifically, the Court observed that since "[i]njuries qualifying as grave are narrowly defined" in the statute, "the only determination to be made is whether the injury falls within the statute's objective requirements." The Court held, therefore, that:
The term "loss of multiple fingers" cannot sensibly be read to mean partial loss of multiple fingers. Words in a statute are to be given their plain meaning without resort to forced or unnatural interpretations (see, McKinney's Cons Laws of NY, Book 1, Statutes, § 232; Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 583). As a matter of standard English usage, the word "finger" means the whole finger, not just its tip.
There is, similarly, no merit in United's further contention that the word "total" appearing elsewhere in the litany of injuries leads to the conclusion that its absence in the phrase under consideration was intended to mean something less than a total loss of multiple fingers. In the list of injuries contained at Worker' Compensation Law § 11, "total" is used in conjunction with the term "loss of use" and not in conjunction with "loss of multiple fingers" or any other enumerated body part. While the phrase loss of use might require some indication as to the degree of use lost, the term "loss of multiple fingers" does not.8
In rejecting United's interpretation of § 11, the Court applied the "plain meaning" formula, urged by Southern, that it enunciated in Majewski v. Broadalbin-Perth (supra) as follows:
It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature" (Patrolmen's Benevolent Assn. v. City of New York, 41 N.Y.2d 205, 208; see also, Longines-Wittnauer v. Barnes & Reinecke, 15 N.Y.2d 443). As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. As we have stated:
In construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning" (Tompkins v. Hunter, 149 N.Y. 117; see also, Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98).9
Legislative History
As Castro explains, "[t]he legislative history is fully consistent with this reading of the statute".10 Specifically, by limiting claims against employers to cases involving stautorily defined "grave injuries", the Legislature sought to limit the effect of Dole v. Dow Chemical Corp.,11 which had allowed claims for contribution and indemnification against employers no matter how minimal the injury. This limitation was intended to bring New York more into line with other states where Workers' Compensation provides the exclusive remedy for workers injured on the job, and where, with the exception of contractual indemnification, no claims for contribution or indemnification against an employer are permitted. Section 11 does not deny plaintiffs recovery, as they may nonetheless maintain actions against other alleged tortfeasors (such as United in the Castro case) as they would have done even if permitted to sue their employers.
This purpose to limit, substantially, the number of third-party claims maintainable against employers is borne out by both § 11's statutory language and its legislative history. The Omnibus Workers' Compensation Reform Act of 1996, which amended § 11, states:
It is the intent of the legislature that * * * employers obtain a degree of economic protection from devastating lawsuits. * * * It is the further intent of the legislature to create a system which protects injured workers and delivers wage replacement benefits in a fair, equitable and efficient manner, while reducing time-consuming bureaucratic delays, and replacing [Dole v. Dow] liability except in cases of grave injury.12
The same objective is reflected in numerous memoranda contained in the Bill Jacket accompanying the legislation.
For example, a Memorandum from the State Department of Labor to the Governor's counsel states that the proposed legislation "restores the integrity of the workers' compensation system" by "repeal[ing] current law which allows third parties to sue employers in workers' compensation cases." The Labor Department recognized that allowing third-party actions "not only undermined the intent of the workers' compensation law, but also costs New York employers millions in additional workers' compensation insurance premiums." Thus, WCL § 11 "would significantly limit when third parties may sue employers in workers' compensation cases."13
Moreover, in Majewski (supra), which held that § 11 was to be applied prospectively, the Court of Appeals specifically acknowledged that the intention of modifying the Dole case was "repeatedly expressed by all sides during the legislative debates," and that "[m]emoranda issued contemporaneously with the passing and signing of the Act provided that 'the exclusive remedy' [of Workers' Compensation] would be 'restored and reinforced'".14
It is likewise clear that the courts and the Workers' Compensation Board were to have no discretion in determining what constituted a "grave injury." This is made explicit by the language of § 11, stating that "grave injury" shall mean "only" one or more of the specifically enumerated injuries. As one authority has noted, "grave injury" is defined to be only those injuries "which are stated in the list provided in the statute and as determined by medical evidence to be a permanent and total loss", and that this "appears to express the intent of the legislature not to permit the Workers' Compensation Board discretion in determining whether an employer may be impleaded".15
In narrowly interpreting WCL § 11, the Castro Court, quoting the Governor's approval memorandum, recognized this extensive and unambiguous legislative history:
The grave injuries listed are deliberately both narrowly and completely described. This list is exhaustive, not illustrative; it is not intended to be extended absent further legislative action.16
Moreover, apparently responding to United's argument that the statutorily enumerated injuries seemed arbitrary and without rational basis, the Court concluded that "[w]hile it is doubtful that any list that purported to be the complete catalog of "grave" injuries would - or ever could - meet with universal approval, that is not the question before us and we may not lightly alter this legitimate exercise of legislative prerogative.17
The Effect of 'Castro'
Although Castro has the direct result of prohibiting United's third-party action, its impact will be far broader. In particular, the Court's treatment of the phrase "loss of multiple fingers" should apply equally to § 11's other objective "grave injuries", including the "loss of multiple toes", "loss of nose", "loss of ear" or "loss of an index finger". Furthermore, in order to qualify as "grave" the "amputation of an arm, leg, hand or foot" should also be complete.18
In addition, the reasoning in Castro also should provide some insight into just how "severe" facial disfigurement must be to qualify as grave. To be sure, the plain meaning and legislative history of § 11 must be consistently applied, and several appellate courts have done so in a manner now substantiated by Castro.19
Castro also serves impliedly to overrule two decisions of the Appellate Division, First Department, which were relied upon by United and the plaintiff. In Banegaz v. F.L. Smithe Machine Co., Inc.,20 the operator of an envelope folding machine suffered in a work-site accident the complete amputation of his right ring finger and the partial amputation of his right pinky finger. He commenced a product liability action against the machine's maker, which brought a third-party claim against his employer. The trial court denied the employer's motion to dismiss the third-party action under § 11, and on appeal the First Department affirmed, holding as follows:
To read the phrase "loss of multiple fingers" to mean, as the employer urges, a total loss of multiple fingers would be to render superfluous the word "total" selectively used before the phrase "loss of use * * * of a [] * * * hand". Had the Legislature intended that the "loss of multiple fingers" must be "total" in order to qualify as a grave injury, it would have used that word immediately before that phrase".21
The argument rejected in Banegaz - that the "loss of multiple fingers" must be total - was the position accepted by the Court of Appeals in Castro. Moreover, Castro explicitly abjured the First Department's search for a modifier of the phrase "loss of multiple fingers", holding that, despite the statute's silence, the loss must be total. Thus, as the issue in Castro was identical, the holding of Banegaz has been undermined and should not be followed.
Although addressing a different issue, the First Department's decision in Meis v. ELO Organization, LLC22 also appears to have been overruled by Castro. In Meis, the plaintiff plumber sustained the complete amputation of the thumb of his dominant hand in a work-related injury. Meis sued the premises owner and general contractor, which in turn impleaded his employer.
The employer moved, unsuccessfully, to dismiss the third-party actions under Workers' Compensation Law § 11. On appeal, the First Department, in a 4-1 decision, affirmed, finding that "a jury should be allowed to examine the degree of plaintiff's impairment to determine if it is sufficiently 'grave' to allow third-party recovery against his employer".23 Such holding is now at odds with Castro and probably would not withstand Court of Appeals' scrutiny, inasmuch as it contradicts both § 11's plain meaning and legislative history.
To be sure, the "loss of a thumb" is not an enumerated "grave injury", and in fact, was specifically excluded from § 11. According to a reputable authority, the choice between inclusion of an index finger or a thumb was left to the plaintiff's bar, which ultimately opted for index finger.24
Another source reports that prior to enacting § 11 the anatomical issues were discussed: the Governor wanted "thumb" in the list, whereas the Assembly Speaker Silver favored "index finger". Ultimately, the Governor dropped the thumb and the impasse was broken.25
Thus, Meis specifically endeavored to expand § 11 to include an injury that was purposefully excluded. In addition, among the factors the Meis majority considered as defining "grave injury" was whether the plaintiff was able to return to his trade.26 As the dissent explained, however, "that * * * is not the standard".27
1. See, ___ N.Y.2d ___, ___ N.Y.S.2d ___, 2001 WL 721399 (June 28, 2001)
2. L. 1996, ch. 635
3. See, 2001 WL 721399 at *1
4. 273 A.D.2d 337, 338, 710 N.Y.S.2d 90, 91 (2nd Dept., 2000)
5. 96 N.Y.2d 701, 722 N.Y.S.2d 793 (2001)
6. See, 2001 WL 721399, at *1
7. Id.
8. Id., at *2
9. 91 N.Y.2d at 583, 673 N.Y.S.2d at 9
10. See, 2001 WL 721399, at *2
11. 30 N.Y.2d 143, 331 N.Y.S.2d 382 (1972)
12. L. 1996, ch. 635, § 1; 1996 McKinney's Session Laws of N.Y., at 1913.
13. Mem., August 7, 1996, from N.Y. State Department of Labor to Michael C. Finnegan; see also, correspondence dated August 16, 1996 from The State Insurance Fund to the Governor's counsel, noting that:
[T]he bill restores the concept of workers' compensation being the exclusive remedy of injured employees. This is a crucial accomplishment since New York currently stands alone among states in allowing third parties to pursue claims for contribution and indemnity against employers to the full extent of the employer's equitable share of the employee's damages. The exposure to Dole v. Dow liability made it impossible for New York businesses to successfully compete with those of other states.
14. 91 N.Y.2d at 584, 585, 673 N.Y.S.2d at 969 (citations omitted)
15. Minkowitz, 2001 Supp Practice Commentaries, McKinney's Cons Laws of NY, Electronic Update
16. See, 2001 WL 721399, at *2
17. Id.
18. It could be argued, consistently with § 11's plain meaning and legislative history, that the terms "permanent and total" apply not only to "loss of use" but to "amputation" as well. Indeed, it is conceivable that an "arm, leg, hand or foot" might be completely amputated in an accident, but later successfully reattached through surgical intervention. Under such circumstances, the "amputation" would not be "permanent and total", and thus, not "grave".
19. See, e.g., Bardouille v. Structure-Tone, Inc., ___ A.D.2d ___, 724 N.Y.S.2d 751 (2nd Dept., 2001)(barely visible facial scarring and disfigurement of ear not "permanent and severe facial disfigurement"or "loss of ear"); Bradt v. Lustig, 280 A.D.2d 739, 721 N.Y.S.2d 114 (3rd Dept., 2001), app. dismissed, ___ N.Y.2d ___, ___ N.Y.S.2d ___, 2001 WL 557974 (May 10, 2001)(although WCL § 11 lists "paraplegia or quadriplegia" as grave injuries, paralysis contemplated by Legislature limited to permanent, not transient, paraplegia or quadriplegia);
Hussein v. Pacific Handy Cutter, Inc., 272 A.D.2d 223, 708 N.Y.S.2d 74 (1st Dept., 2000)(injury causing corrected visual acuity of 20/40 in one eye not "grave injury"); Ibarra v. Equipment Control, Inc., 268 A.D.2d 13, 707 N.Y.S.2d 208 (2nd Dept., 2000)(loss of vision in one eye not "grave injury"); Hilbert v. Sahlen Packing Co., 267 A.D.2d 939, 701 N.Y.S.2d 564 (4th Dept., 1999), app. dismissed, 95 N.Y.2d 790, 711 N.Y.S.2d 156 (particular facial and internal injuries, fractures and partial loss of hearing and vision not "grave"); Barbieri v. Mount Sinai Hospital, 264 A.D.2d 1, 706 N.Y.S.2d 8 (1st Dept., 1999)(facial scarring not "permanent and severe facial disfigurement" and cognitive deficits not "permanent total disability" under § 11); Fichter v. Smith, 259 A.D.2d 1023, 688 N.Y.S.2d 337 (4th Dept., 1999), lv. denied/dismissed, 94 N.Y.2d 994 (fracture of both heels not "grave injury")
20. 266 A.D.2d 113, 698 N.Y.S.2d 143 (1st Dept., 1999)
21. Id., at 113-14, 143-44
22. ___ A.D.2d ___, 723 N.Y.S.2d 170 (1st Dept., 2001)
23. Id., at 171-72
24. Siegel, A Flood of 1996 Procedure Bills: The Workers' Compensation (Dole/Dow) Bill, New York Law Journal, Outside Counsel, October 7, 1996, at p. 6, col. 4
25. Metz, Court Rejects Suit on Finger Loss, Newsday, June 29, 2001, at A20
26. See, Meis, 723 N.Y.S.2d at 171
27. Id., at 176
(New York Law Journal, August 31, 2001, Outside Counsel, p. 1, col. 1.)
(pub5.html)
Back to top
Back
|
