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MATTER CLAIM FRANK GORMELEY v. NEW YORK DAILY NEWS ET AL. (04/29/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT 1968.NY.41418 <http://www.versuslaw.com>; 289 N.Y.S.2d 506; 30 A.D.2d 16 April 29, 1968 IN THE MATTER OF THE CLAIM OF FRANK GORMELEY, APPELLANT,v.NEW YORK DAILY NEWS ET AL., RESPONDENTS. WORKMEN'S COMPENSATION BOARD, RESPONDENT Appeal from a decision of the Workmen's Compensation Board, filed June 7, 1967. Rowen & Downes (Saul C. Downes of counsel), for appellant. Bernard F. Farley and Joseph M. Soviero for New York Daily News and another, respondents. Louis J. Lefkowitz, Attorney-General (Morris N. Lissauer and Daniel Polansky of counsel), for Workmen's Compensation Board, respondent. Herlihy, J. Gibson, P. J., Reynolds, Aulisi and Gabrielli, JJ., concur. Author: Herlihy


Appeal from a decision of the Workmen's Compensation Board, filed June 7, 1967.

Herlihy, J. Gibson, P. J., Reynolds, Aulisi and Gabrielli, JJ., concur.

Author: Herlihy

 Appeal by the claimant from a decision of the Workmen's Compensation Board which held that claimant did not have an occupational loss of hearing within the meaning of the Workmen's Compensation Law. The board further found "that the rules and criteria prescribed for the measurement and determination of loss of hearing are within the power of the board and are highly salutary and eminently reasonable."

The appellant on this appeal challenges the constitutionality of article 3-A of the Workmen's Compensation Law captioned "Occupational Loss of Hearing" and the rules formulated by the board which created risk criteria and standards for the measurement and determination of occupational loss of hearing. This article is distinguishable from the hearing loss provisions contained in section 15 of the Workmen's Compensation Law in that it relates solely to loss of hearing resulting from employment where the employee is exposed to harmful noise.

Section 49-aa of the article declares that loss of hearing resulting from exposure to industrial noise has created a problem of grave concern to the Legislature and that compensation for such loss, taking into consideration the public interest, can best be served by the conditions and limitations contained in the said article.

The facts are not in dispute. The claimant had worked for his employer for approximately 44 years when he retired in August, 1964. Approximately two years thereafter, April 19, 1966, he filed a claim for industrial loss of hearing, pursuant to the above-stated article, and after medical examinations, as prescribed by its regulations, the board determined that pursuant to the formula therein set forth, the claimant's loss of hearing was outside the frequency range used for (conversational) speech and therefore, found that the claimant had not sustained a compensable hearing loss.

The contentions of the claimant are basically directed to the restriction of compensation payments (schedule loss) to the hearing range of conversational speech. It is readily apparent that this claimant has been in no way adversely affected by article 3-A except as he has been limited solely to proof of loss within the tonal ranges set forth in the board's regulations pursuant to section 49-gg. The broad constitutional objections of the claimant as to article 3-A have no effect upon his rights in the context of this case except as his right to a schedule loss has been limited to conversational speech hearing and certain tonal ranges.

In 1948 the Court of Appeals in Matter of Slawinski v. Williams & Co. (298 N. Y. 546) affirmed a board's finding that the claimant suffered an occupational disease -- tinnitus -- resulting from his work (a forge shop) and that albeit there was no lost time or any loss of earnings, the claimant was entitled to a schedule award for such loss of hearing. This holding became a matter of concern and resulted in the board appointing a Committee of Consultants on occupational loss of hearing. A report of the said committee was made in 1953 which in part stated: "The ability to understand speech is universally regarded as the aspect of the sense of hearing that is of most importance in social and economic life. For compensation purposes, therefore, this aspect of hearing is also the one of most importance." (See Appendix A of the report: 12 NYCRR 350.1.) However, as of the date of the report, no agreement had been reached on the best manner of determining the ability to understand speech.

In 1958 the Legislature enacted article 3-A and as part thereof section 49-gg, which, inter alia, contained a directive that expert recommendations be secured as to specific subjects and further provided: "The workmen's compensation board, after giving due consideration to such findings and recommendations, is authorized to adopt reasonable rules, not inconsistent with the provisions of this chapter and the labor law, prescribing damage risk criteria and standards for the measurement and determination of occupational loss of hearing. Pending the formulation and adoption by the workmen's compensation board of such rules, claims for occupational loss of hearing shall be determined upon the basis of the tentative standards and criteria contained in the report, dated December, nineteen hundred fifty-three of the committee appointed by the workmen's compensation board and entitled 'Report of the Committee of Consultants on Occupational Loss of Hearing'".

To say that the methods adopted by the Legislature in attempting to solve this social problem are unusual is to admit that the procedure is out of the ordinary.

A report of the Committee of Consultants was made to the Workmen's Compensation Board in 1960. The report contained a formula for the determination of hearing impairment caused by exposure to harmful industrial noise. The formula set the tonal ranges for the hearing levels of conversational speech and the method of computing the percentage of loss within such ranges for the purpose of schedule losses. The board adopted this report and by appropriate rules and regulations made the recommended formula the mode of procedure of securing compensation under article 3-A.

I. We determine that article 3-A is not unconstitutional.

The genesis of the Workmen's Compensation Law is a constitutional amendment (N. Y. Const., art. I, ยง 18) duly adopted by the People of this State. This amendment gave to the Legislature the right to enact laws for the protection of the lives, health or safety of employees, subject to certain exceptions not pertinent to the present consideration. It might be paraphrased by stating that the Legislature was given a carte blanche mandate to protect the rights of the working man as it, in its wisdom, saw fit. (See Matter of Toomey v. New York State Legislature, 2 N.Y.2d 446, 448.) In providing for certain losses to the employee due to injuries, diseases and dangers of his employment, which legislation under certain conditions gave him an absolute right to compensation, the Legislature could take away from the employee certain other rights of action that he had at law, and an employee has to bear the loss of those rights and be compensated therefor by the absolute right to payment under certain conditions arising out of the same injuries, diseases and dangers (del Busto v. Du Pont de Nemours & Co., 167 Misc. 920, 923, affd. 259 App. Div. 1070, mot. for lv. to app. den. 284 N. Y. 817).

That the Legislature was concerned with a difficult problem seems undisputed. When an employee, working in a noisy form of employment, made a claim for compensation, there was no adequate method for the measurement of the impairment or establishment of the relationship of such impairment with the employment prior to the enactment of article 3-A, as best exemplified in Matter of Slawinski (298 N. Y. 546, supra). The possible consequences and the resulting social and economic dangers were quickly recognized by the Workmen's Compensation Board and by the Legislature when called to its attention. It should be observed that in all of the studies ...


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