As between the two plausible definitions for a “permanent total disability” with respect to an acquired brain injury under Workers’ Compensation Law § 11, the narrower one is, in my view, more faithful to legislative intent. Accordingly, I dissent, and would affirm the orders in Rubeis and Largo-Chicaiza and reverse the order in Knauer.
The 1996 amendment of Workers’ Compensation Law § 11, which created the “grave injury” exception for indemnification or contribution claims against an injured worker’s employer (L 1996, ch 635, § 2), was heavily negotiated. The particular compromises struck to develop the list of grave injuries are unknowable and, in some cases, the results seem downright peculiar. Why, for example, is the loss of an index finger a grave injury while the loss of a thumb is not? We clearly know, however, what the Legislature intended, which was to curtail third-party actions against the employer of an injured worker sharply and to do so, in large part, by designating grave injuries that were “deliberately both narrowly and completely described,” “exhaustive, not illustrative” and “not intended to be extended further absent legislative action” (Castro v United Container Mach. Group, Inc., 96 NY2d 398, 402 [2001], quoting Governor’s Approval Mem, Bill Jacket, L 1996, ch 635, at 55, 1996 NY Legis Ann, at 460).
Despite the Legislature’s best efforts to insulate the grave injuries in section 11 from judicial interpretation (and the perceived attendant risk of judicial expansion), the phrase “an acquired injury to the brain caused by an external physical force resulting in permanent total disability” is not self-explanatory. In adopting a standard for permanent total disability essentially requiring unemployability rather than the competing and narrower standard, the inability to perform the usual activities of daily living, the majority deploys tools of statutory interpretation that are tried-and-true, but unsuited to the particular task. Specifically, since many (but certainly not all) of the grave injuries listed in section 11 do not prevent an *419employee from performing daily life activities, the majority reasons that “[Limitation of permanent total disability to a vegetative state ... is too harsh a test, out of step with the balance of the section” (majority op at 417). This kind of text-based analysis ill-fits section 11 since the list of grave injuries is, as previously noted, the singular product of legislative compromise, and is exhaustive, not illustrative. It is difficult to reason by analogy to the other grave injuries on the list when these are as various as the loss of a finger and quadriplegia.
The majority further observes that the word “disability” generally refers to employment within the “larger context” of the Workers’ Compensation Law (majority op at 417). But these employment-related definitions of “disability” appear in provisions of the statute relating to payment of compensation (see e.g. Workers’ Compensation Law § 15 [1]; §§ 37, 201 [9]). These provisions bear no relationship to section ll’s very different and overriding goal—to safeguard employers from impleader except in rare circumstances. *
When the Legislature adopted section 11, it intended to retrench an employer’s exposure to costly third-party actions, and thereby reduce the employer’s insurance premiums and out-of-pocket payments. The Legislature did this by barring third-party actions against employers except in the limited circumstances of a grave injury. As has been pointed out, the 1996 amendment of section 11 to carry out this goal “[was] at best indifferent to the employee, its aim being to protect the employer” (Under Workers’ Compensation Reform Act, Loss of Thumb is Held to Mean Loss of Use of Hand, Supporting Impleader of Employer, 109 Siegel’s Practice Review 1 [May 2001]). In light of this goal and the concomitant legislative intent for us to exercise our interpretive function particularly sparingly and narrowly with respect to grave injuries under section 11,1 would adopt the more restrictive of the two plausible, *420and equally workable, definitions for a “permanent total disability” developed by the Appellate Divisions; namely, that a “permanent total disability” with respect to an acquired brain injury means the inability to perform the usual activities of daily living, essentially requiring a vegetative state.
Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and R.S. Smith concur with Chief Judge Kaye; Judge Read dissents and votes to affirm in a separate opinion.
In Rubeis v Aqua Club, Inc.: Order reversed, etc.
In Largo-Chicaiza v Westchester Scaffold Equipment Corp.: Order reversed, etc.
Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and R.S. Smith concur with Chief Judge Kaye; Judge Read dissents and votes to reverse in a separate opinion.
In Knauer v Anderson: Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.
In fact, the Legislature seems to have borrowed section ll’s definition of an acquired brain injury from Public Health Law § 2741, not from any other provision in the Workers’ Compensation Law. In relevant part, section 2741 defines “traumatic brain injury” to mean “an acquired injury to the brain caused by an external physical force resulting in total or partial disability or impairment” (emphasis added). The Legislature considerably limited this definition in section 11 by eliminating the words “partial” and “impairment” and adding the word “permanent” to describe, along with “total,” the profound extent of disability required to quality as a grave injury. Nothing in section 2741 or article 27-CC of the Public Health Law relates the word “disability” to the concept of employability.