Claim of Russell v. Union Forging Co.

Gibson, P. J. Appeals by an employer and its insurance carrier from decisions of the Workmen’s Compensation Board which established liability for occupational loss of hearing and made a schedule award therefor. Specifically, the board found 52.5% binaural loss of hearing, incurred by claimant as the result of 22 years’ exposure to noise in the course of his employment as a hammerman by appellant Union Forging Company. None of these findings are contested. The board fixed the date of disablement as in April, 1964, being six months after claimant’s separation from employment with appellant Union in October of 1963; this in purported compliance with section 49-bb of the Workmen’s Compensation Law, in pertinent part providing: “Notwithstanding any other inconsistent provisions of this chapter compensation for occupational loss of hearing shall become due and payable six months after separation from work for the last employer in whose employment the employee was at any time during such employment exposed to harmful noise, and the last day of such period of separation from work shall be the date of disablement.” Before the expiration of the six months’ period following his separation from Union, claimant entered the employ in New Jersey of Garden State Forge Company, with whom his employment continued at least until the time of the schedule award, and in which employment his exposure to harmful noise continued. Appellants’ sole contention, in resisting the. award, is that inasmuch as claimant had not removed himself from employment exposing him to harmful noise, he is not at this time entitled to the schedule award and will not be entitled to any award until he shall have been free from such exposure for the six months’ period provided by section 49-bb, above quoted. The basis of the board’s decision is that the section 49-bb clause, “ the last employer in whose employment the employee was * * * exposed to harmful noise ”, refers to the last New York employer or employer subject to the jurisdiction of the New York Workmen’s Compensation Board. (See Matter of Ciavarro v. Despatch Shops, 22 A D 2d 312, mot. for lv. to app. den. 15 N Y 2d 486; Matter of Hamilton v. Healy Co., 14 A D 2d 364.) These authorities, and the principles underlying them, seem to us to require affirmance of the award. Otherwise, in all probability, if not, indeed, in certainty, claimant will remain uncompensated, now and in future, for the serious condition caused by 22 years’ service in a harmful employment. The result would be to thwart the beneficial intent of the Workmen’s Compensation Law and, in particular, the “grave concern” of the Legislature, manifest in article 3-A of the act, for workmen incurring occupational deafness. It is true, of course, that the purpose of the six months’ delay prescribed by section 49-bb was to enable medical evaluation of the extent of the hearing loss to be made with a greater degree of accuracy. Even before the enactment of section 49-bb (L. 1958, eh. 974, eff. July 1, 1958) this medical principle was generally recognized and given effect 714 (see, e.g., Matter of Grano v. Despatch Shops, 7 A D 2d 6, 10; Matter of Lumsden v. Despatch Shops, 5 A D 2d 242); and thus the knowing departure from it in Giavarro (supra) was not, as the present dissents suggest, predicated solely or basically on the conclusion that section 49-bb was not retroactive, so as to render retroactivity the basic issue upon the appeal. In fact, the question of retroactivity had previously been determined (Matter of McGoldrick v. New York Post, 20 A D 2d 595), as Ciavarro noted (p. 314) and as, indeed, the present dissents recognize, and hence was not required to be decided anew. Further, the pertinent words in section 49-bb — “ the last employer in whose employment the employee was '' * * exposed to harmful noise”, which are, incidentally, critical to issues other than this were not new; but in the 1958 amendment were adapted from the then and present section 44 (as amd. L. 1947, eh. 431, § 9) governing liability for occupational diseases generally and referring to “ the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted ”. Thus, neither Ciavarro (supra), nor Hamilton (14 A D 2d 364, supra), which preceded it, turned on questions of procedure and retroactivity but, rather, on the substantial issue of the legal construction of the term “last employer”. So, in Giavarro (supra, p. 315), as the appellants themselves recognized, it was made clear “ that the rule enunciated in Matter of Hamilton v. Healy Co. (14 A D 2d 364) [supra] require [d] the holding * * * that the last employer subject to its jurisdiction from whom compensation was recoverable was Despatch Shops, Inc.” And here, as in Ciavarro (supra, pp. 315-316), “ the holding contended for by appellants would deprive claimants of any remedy, a result which we think the Legislature did not contemplate. (Matter of Slawinski v. Williams & Co., 298 N. Y. 546, mot. for rearg. den. 298 N. Y. 634.) ” In sum, we find Ciavarro and Hamilton in point and controlling, there being no distinction between the interstate rail carrier which was, in terms of chronology, the last employer in Ciavarro and the New Jersey employer here, neither being subject to the New York Workmen’s Compensation Law or within the jurisdiction of the New York Workmen’s Compensation Board. There is no claim that the six months’ period away from harmful noise is indispensable to a proper diagnosis. Such a contention was squarely presented and rejected in Ciavarro (supra). The statute itself, for example, authorizes a posthumous award if death occurs before the employee shall have been removed from exposure to harmful noise for the six months’ period. (Workmen’s Compensation Law, § 49-dd.) In this case, medical experts testified to a permanent binaural loss of hearing ranging from 49% to 73%; appellants’ expert testified to a hearing loss of 49.5% ; and appellants interpose no factual contradiction and do not dispute on factual grounds the board’s finding of 52.5%. Each minority memorandum is based on the idea that the Legislature made it imperative that medical evaluation of the hearing loss be postponed six months, and, of course, this is true in most instances. However, where, as here, and as in Ciavarro (supra), such evaluation is impossible because of continuing noisy employment beyond the board’s jurisdiction, and where, as here, there can never be a more accurate medical evaluation concerning this employment than that now before us, we can see no point in merely postponing payment, which is all the minority would have us do; but, parenthetically, with no indication of how this procedural step may be accomplished under the statute. It seems to us that the conclusion at which the minority arrives thus undermines its own basic rationale. Since actual payment is, in sum, all that the minority would, or could, postpone, we would observe that the payment of a schedule award for organic damage, prior to actual loss of earnings, is not in the least unusual. Under the system of liability and apportionment, as well as the time limitations, imposed by 715 article 3-A (see § 49-ee in particular), a holding that payment must be postponed is not only hypertechnical, but would apparently deprive claimant of any compensation, now and in future, leaving him uncompensated for a serious condition admittedly due to 22 years’ harmful exposure in a New York employment; a result as manifestly unfair as unintended under the statute. Decisions affirmed, with costs to the Workmen’s Compensation Board. Gibson, P. J., Reynolds and Aulisi, JJ., concur in memorandum by Gibson, P. J. Herlihy and Gabrielli, JJ., dissent and vote to reverse in separate memorandums.