Keywords:Worker Compensation; impleader; Dole vs. Dow Chemical Co.

We always believed that workers compensation benefits were the sole remedy of an injured employee against employer.

In 1972, The New York Court of Appeals decided Dole Vs. Dow Chemical Co, which allowed the defendant to bring in third parties who may have contributed to plaintiff's injury, including the employer.

The injured employee could not sue the employer directly but the defendant can bring in the employer. And, there goes the belief that Worker's Compensation Insurance insulates the employer from suits by employees.

The Omnibus Workers' Compensation Reform Act (Chapter 635 Laws of 1996 NY State) prohibits any party from suing the employer unless the employee sustained a "grave injury." This is some relief for the employer since it reduces exposure except in serious cases.

The primary statute involved defines grave injury as:

"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."

The new law went into effect on September 10, 1996. Does it apply to injury sustained prior to September 10, 1996 or only to injuries sustained thereafter? Does it apply to cases presently being litigated? The governor says yes, one court has said no! If you have a case pending, we suggest that you review it with regard to applicability of the new law.