Grave Injuries: When A New York Employee Can Recover From His Employer Outside of Workers’ Compensation

The Workers’ Compensation “Bar” on Civil Exposure.

In New York, an employer’s liability for a work-related injury is generally limited to payment of wage loss (indemnity) and medical benefits under the Workers’ Compensation Law (WCL). The WCL prevents an injured worker from suing his employer for his work-related injury, except in cases where the worker sustained a grave injury. It would seem to make sense that a worker who sustained a grave injury would be able to recover more than just Workers’ Compensation benefits given the seriousness of his injury. However, in order for this to happen, there must be a third-party action, wherein a third-party tortfeasor is being sued, and this third-party tortfeasor seeks contribution or indemnification from the employer. Otherwise, if there is no third-party action, the worker cannot directly sue his employer, even if he sustained grave injuries.

Defining “Grave Injury.”

So, what exactly is a grave injury? While the word “grave” indicates a very severe injury, Section 11 of the WCL clearly defines what it means:

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.

Nevertheless, while the statute seems clear-cut, there has been some litigation over what constitutes a grave injury. For example, in the landmark case of Castro v. United Container Mach. Group, Inc., the “loss of multiple fingers” was addressed. 96 N.Y.2d 398, 761 N.E.2d 1014, 736 N.Y.S.2d 287, 2001 N.Y. LEXIS 1869 (N.Y. 2001). [Link] In this case, the worker lost the tips of multiple fingers while using a die-cutting machine during the course of his employment. The worker’s position was that the loss of multiple tips of fingers meant that he lost multiple fingers. However, the Court found that the statute was clear enough that the loss must be a loss of multiple fingers, and not a loss of parts of multiple fingers. As such, the Court found that the worker did not sustain a grave injury, based on the plain language of the statute, and therefore, the employer would not be liable for contribution or indemnification for the worker’s loss.

Defending Employers.

The ruling in Castro was significant for employers as it narrowed the number and types of injuries that would be classified as grave and which in turn would allow the worker to recover from his employer outside of Workers’ Compensation. The ruling also supported the legislative intent of the WCL, which is to limit an employer’s liability for work-related injuries. With this ruling, employers can now more easily defend claims for contribution or indemnification in situations where the injury is not as specific as is listed in the statute. And the end result of this ruling? Decreased employer liability!

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Tashia Rasul is an Partner at Lois LLC where she defends employers and carriers in New York workers’ compensation claims and leads the Construction Defense Practice team. Tashia chairs the Firm's Diversity Committee and is active in the national Alliance of Women in Workers' Compensation. She can be reached directly at or 201-880-7213.