decided: March 5, 1969.
IN THE MATTER OF THE CLAIM OF ALVIN G. RUSSELL, CLAIMANT,
UNION FORGING COMPANY ET AL., APPELLANTS, ET AL. WORKMEN'S COMPENSATION BOARD, RESPONDENT
Matter of Russell v. Union Forging Co.,
Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating and Breitel concur in memorandum; Judge Jasen dissents and votes to reverse in an opinion.
Memorandum. During claimant's 22-year New York employment with the same employer he was continuously exposed to harmful noise. After leaving his New York position he engaged immediately upon similar work under similar conditions in New Jersey. Although there was no six months' hiatus in exposure to harmful noise as required by section 49-bb of the Workmen's Compensation Law, claimant nevertheless sought compensation for his occupational hearing loss occasioned while employed in New York. The Workmen's Compensation Board allowed the claim and made a schedule award against the New York employer's carrier. To achieve this result, the phrase the "last employer" (Workmen's Compensation Law, § 49-bb) was determined to mean the last employer subject to the jurisdiction of the New York State Workmen's Compensation Board. The close question of statutory interpretation presented is resolved by looking to all of article 3-A of the Workmen's Compensation Law in which the words "last employer" appear seven times. In several of these instances the words necessarily imply the last employer over whom the board had jurisdiction (cf. Matter of Hamilton v. Healy Co., 14 A.D.2d 364). There is insufficient basis for reading the same phrase one way in one section and contrarily in another.
Accordingly, the order of the Appellate Division confirming the award of the Workmen's Compensation Board should be affirmed, with costs.
Jasen, J. (dissenting). I would reverse the order of the Appellate Division and remit the claim.
Section 49-bb of article 3-A of the Workmen's Compensation Law, in pertinent part, provides that "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". Under this section, I submit the claimant herein must be separated from his New Jersey employer for six months before he is entitled to receive compensation for his hearing loss.
While the phrase "last employer" as used in other sections of article 3-A of the Workmen's Compensation Law refers to the last New York State employer (Matter of Hamilton v. Healy Co., 14 A.D.2d 364), I believe the purpose of the Legislature in enacting the six-month separation requirement in section 49-bb requires a different interpretation of the phrase in that section.
At our present state of medical knowledge, it appears impossible to accurately determine the permanency of a hearing loss caused by incessant noise unless the patient is separated from the noise for at least six months. (See 1953 Report of Committee of Consultants on Occupational Loss of Hearing, 12 NYCRR 350.1, pp. 1081-1082 [reaffirmed in 1960, 12 NYCRR 350.1, pp. 1077-1079]; see, generally, 1A Larson, Workmen's Compensation Law, § 41.40, pp. 622.122-622.127.) This was the primary purpose of the six-month requirement.
To construe "last employer" in the present case to mean last New York State employer would not only be inconsistent with the primary purpose of the statute, but would also reach an inconsistent result. Had the claimant in this case left Union Forging and gone to work for another New York State forging company, he would not be able to receive compensation under the statute until he separated himself from the second, noisy employment for six months. I fail to perceive any reason why in the case before us re-employment in the same noisy work outside of this State rather than within the State should change that result.
Under the interpretation I have suggested, claimant's rights are fully protected. His claim is filed, the date of disability is fixed and the last New York employer has been determined to be the Union Forging Company. In order to be entitled to benefits he need only comply with the statutory separation period of six months away from harmful noise, after which period a proper evaluation of his hearing loss may be made.
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