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An amputated thumb may be considered a “grave injury” under New York’s Workers’ Compensation Law, allowing defendants in workplace personal injury cases to seek third-party contribution from a plaintiff’s employer, the Appellate Division, First Department, has ruled. Plumber Spiridou Meis suffered the complete amputation of his thumb when an unsecured pipe fell on him at a Manhattan job site in 1996. After Meis filed suit against Uezo Corporation, the lessee of the premises, and P.S. Systems, the job’s general contractor, the two defendants filed complaints seeking contribution from Meis’ employer, Spartan Plumbing and Heating Company. Spartan moved to dismiss the third-party complaints pursuant to Workers’ Compensation Law Section 11, which states that “[a]n 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 employee has sustained a grave injury ….” The statute goes on to itemize injuries considered “grave” under the law. While the extensive list includes “total loss of use or amputation of an arm, leg, hand or foot … loss of multiple fingers … [and] loss of an index finger,” it does not refer specifically to the loss of use or amputation of a thumb. Arguing its motion for summary judgment last year before Manhattan Supreme Court Justice Louise Gruner-Gans, Spartan unsuccessfully tried to convince the court that because an amputated thumb was not designated by the statute as a grave injury, the company was not required to provide compensation to the third-party plaintiffs. TOTALITY OF LOSS Hearing the appeal to Justice Gruner-Gans denial of Spartan’s motion in Meis v. ELO Organization, 2037, a First Department majority held that the issue of whether Meis’ amputated thumb constituted a grave injury should be left to a jury. “The statute does not require the total loss of a hand; it requires instead the loss of the hand’s use,” the majority opinion stated. “Because of the impairment of his dominant hand, [Meis] is without the ability to grasp and manipulate and can no longer use his training and experience to practice his trade … 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.” Forming the majority were Justices Angela M. Mazzarelli, Richard T. Andrias, Betty Weinberg Ellerin and Alfred D. Lerner. In dissent, Justice Peter Tom argued that expanding the definition of a grave injury to include the loss of a thumb was contrary to the intent of the Legislature. “The majority, impliedly finding that the Legislature did not include all ‘grave’ injuries when it drafted �11, urges that courts may thus expand the term,” he stated. “But by thus ignoring the clear language of �11 and expanding the statutorily designated list, the majority turns an exclusive legislative delineation into an illustrative and merely descriptive listing. We lack the power to do this.” Pointing out that Meis never claimed permanent and total loss of the use of his hand, which is considered a grave injury under the statute, Justice Tom dismissed the majority’s contention that such a total and permanent loss can result from an amputated thumb. “The majority alludes to plaintiff’s possible total loss of use of the hand because he no longer can pursue his trade but that, too, is not the standard,” Justice Tom wrote. “The fact that plaintiff can no longer practice his trade as a plumber due to the loss of a thumb does not constitute the total loss of his use of the hand as urged by the majority.” OTHER AUTHORITIES Citing medical, anthropological and legal authorities detailing the importance of a thumb in the use of a hand, however, the majority found Justice Tom’s analysis to be too narrow. “The dissent acknowledges that if plaintiff’s allegations as to his injury are accurate and can be proven, they are ‘serious’ and it states that ‘the totality of the loss of a body part may have a factual dimension in an appropriate case,’ ” the majority opinion stated. “ However, the dissent concludes that the injuries here cannot be considered ‘grave’ as a matter of law, because plaintiff did not allege the permanent and total loss of use of his hand. This is an overly formalistic reading of the pleadings and an overly narrow construction of the law.” Arguing the appeal for Spartan was Yolanda L. Himmelberger, of Morris, Duffy, Alonso & Faley in Manhattan. Meis was represented by Michael Bender of Argyropolous & Bender, also in Manhattan.

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