Alan Bedenko and Brandon King prevailed at trial in Erie County Supreme Court this week in a case involving the “Grave Injury” standard set forth in Workers’ Compensation Law §11.
In 2020, the injured 64-year-old Plaintiff was injured in a jobsite accident when a flatbed ramp with a broken hydraulic ram fell on top of him. He was hospitalized for two months at ECMC, and filed suit against the owner of the property where the accident happened. The owner, in turn brought a third-party action impleading the injured worker’s employer.
Because the owner and employer did not have a contract containing an indemnity provision, the only option left was for the owner to assert the injured worker suffered a grave injury – that he had an acquired injury of the brain resulting a total and permanent disability from any work. Except for a contusion on his head, loss of consciousness and post-concussive syndrome, the worker had never treated with any provider for – or been diagnosed with – any serious brain injury.
In April 2024, Justice Panepinto ruled for the injured employee and against the Defendant/Third-Party Plaintiff on a motion for summary judgment under Labor Law 240(1) and in October 2024, the injured employee settled his case with the defendant for $1.9 million.
The Third-Party Plaintiff had only a 2024, belatedly arranged, Workers Comp IME finding total disability to create an issue for trial. Nevertheless, Bedenko and King proved to the jury through the testimony of a neurologist that there was no brain injury of any sort after concussion on the date of the incident, no diagnosis of any brain injury after hospitalization or rehabilitation, and that two CT scans of the brain done shortly after the incident were completely normal. A vocational rehabilitation expert expounded on that and testified the injured employee was at least cognitively capable of working jobs similar to the ones he had done before.
This was an all-or-nothing trial on the issue of grave injury and common-law indemnification after the defendant rejected a substantial offer to settle the matter.
After deliberating for about 15 minutes, the jury returned a unanimous verdict in favor of the employer and found there was no grave injury.
