The days of Dole v. Dow are long gone.Workers' Compensation Law sec. 11 allows impleader of an employer as a third-party to a tort action of an injured employee in only two instances: where contractual indemnification exists or where the injured worker sustains a "grave injury."
The Appellate Division, Third Department in Giblin v. Pine Ridge Log Homes, Inc. recently addressed an issue of first impression regarding whether the loss of an eye constituted, as a matter of law, a "permanent and severe facial disfigurement" as set forth under the definition of "grave injury" in section 11. The Court held that the loss of an eye on the record before it did not constitute a "severe facial disfigurement." The Court reasoned:
Although a surgically removed eye clearly results in a permanent condition, plaintiff wears a prosthesis which is removed only once a year for cleaning. As Supreme Court aptly noted, the photographs of plaintiff wearing the prosthesis demonstrate little difference, if any, in his facial appearance before and after the accident.
This decision fits exactly with the Court of Appeals' prior decisions that have stated that courts should narrowly interpret the injuries set forth in sec. 11 with an eye toward the legislative intent of the statute. For the Court of Appeals' discussion of the legislative intent, Castro v United Container Mach. Grp. is a good place to start.