According to Workers’ Compensation Law §11, in an action arising from a workplace accident, a third party may “assert a claim against the plaintiff’s employer sounding in common-law indemnity or contribution where the plaintiff suffered a grave injury.” By statute, a “grave injury” has been given a set definition which includes, among other things, “permanent and total loss of use . . . of an arm, leg, hand or foot.” This portion of the definition is frequently the subject of litigation in personal injury matters in New York State.

In McCrary v. Cedar Manor Realty, LLC, the plaintiff sustained various injuries when he fell from a ladder while pulling wire through conduit above a drop ceiling. He claimed various injuries to his cervical spine and left upper extremity, which resulted in complex regional pain syndrome in his left upper extremity. The plaintiff claimed that the injury to his hand and wrist left him permanently and severely disabled.

In its motion for summary judgment, the third-party defendant employer argued that the plaintiff’s injuries were not “grave,” and therefore the third-party claims for common law contribution and indemnification were barred by Workers’ Compensation Law §11. Third-party defendant introduced the plaintiff’s deposition testimony in which he admitted to being able to open and close his left hand, use his left hand to smoke a cigarette, lift a 20-ounce bottle of soda, use a controller to play video games, wash himself in the shower, dress himself, hold objects weighing four to five pounds, and type on a keyboard.

In granting the motion, the Court reasoned that if a plaintiff has “some use,” or “minimal use,” or even a “substantial loss of use,” these limitations would be insufficient to qualify for a “grave injury” under the category of “permanent and total loss of use . . . of an arm, leg, hand or foot.” According to the Court, a determination that the injured plaintiff could not “effectively use his left hand” does not satisfy the statutory definition of a “grave injury.” Third-party defendant was able to show, through competent medical evidence as well as the plaintiff’s bill of particulars and deposition transcripts, that the plaintiff had some use of his left hand.

Workers’ Compensation Law §11 is a statute designed to protect an employer’s exposure when an employee is injured on the job. The “grave injury” section of this statute has a narrow definition that courts have strictly adhered to. When representing the employer, pay close attention to the medical records and deposition testimony. If the plaintiff’s claimed “loss of use” of an arm, leg or foot is not complete and total, there is a good chance that a court will deem the injuries to be less than “grave,” and grant a motion for summary judgment.

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Thanks to Jeremy Seeman for his contribution to this post.