In Anton v. West Manor Construction Corp et al., the First Department highlighted the difficulty in proving that a plaintiff suffered a “grave injury” when he is claiming a brain injury.  By way of background, New York only permits a third party claim against an employer when its employee has sustained a “grave injury.” One category of “grave injury” is “an acquired injury to the brain.”

In Anton, a construction worker was injured when a cinder block was dropped from a height and hit the plaintiff. Plaintiff claimed he was permanently disabled and could no longer work. Relying on Rubeis v. Aqua Club, Inc. 3 N.Y.3d 408 (2004), the Appellate Division agreed that plaintiff’s inability to work was caused by injuries to his neck and shoulder, not by an acquired injury to the brain. In addition, plaintiff’s daily headaches and inability to focus were not sufficient to satisfy the acquired brain injury standard.  As a result, all common law negligence claims against plaintiff’s employer were dismissed because plaintiff did not sustain a “grave injury” within the meaning of Workers’ Compensation Law §11.

Thus, when litigating employee/employer “brain injury” cases, a thorough evaluation of the injuries must be conducted to determine whether or not the injury meets the Rubeis standard, i.e. whether the injuries are directly related to the brain.

Thanks to Alison Weintraub for her contribution to this post. If you have any questions or comments, please email Paul at .