Calendar Date: April 24, 2017
Levine & Associates, Islandia (Eliot S. Levine of
counsel), for appellant.
Smit, O'Boyle & Weisman, Hauppauge (Jennifer K. Cohen
of counsel), for Newsday, respondent.
Before: McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.
MEMORANDUM AND ORDER
from a decision of the Workers' Compensation Board, filed
February 8, 2016, which ruled that setting the date of
disablement for the purposes of a schedule loss of use award
was premature pursuant to Workers' Compensation Law
2010, claimant, a pressman at a newspaper company, applied
for workers' compensation benefits claiming hearing loss
due to long-term exposure to workplace noise. A Workers'
Compensation Law Judge determined that claimant suffers from
work-related bilateral sensorineural hearing loss and
tinnitus, but that setting a date of disablement for the
purposes of a schedule loss of use award was premature
pursuant to Workers' Compensation Law § 49-bb
because claimant continued to work in the same position and
be exposed to the same workplace noise. In 2013,
claimant's request for a schedule loss of use award was
again found to be premature due to his continued exposure to
workplace noise. Requests for awards filed in November 2014
and December 2014 were similarly denied as premature.
March 2015, claimant again requested a schedule loss of use
award. Following a hearing, the Workers' Compensation Law
Judge found that, insofar as claimant was still being exposed
to workplace noise, nothing had changed since the previous
decisions and that the setting of the date of disablement for
purposes of a schedule loss of use award continued to be
premature pursuant to Workers' Compensation Law §
49-bb. This determination was affirmed by the Workers'
Compensation Board, prompting this appeal.
affirm. As relevant here, compensation for occupational
hearing loss shall become due three months after
"removal from exposure to harmful noise in employment
(removal from exposure to harmful noise in employment for the
three[-]month waiting period may be achieved by use of
effective ear protection devices provided at the expense of
the employer)" and "[t]he last day of such period
of removal from such exposure or of separation from such work
shall be the date of disablement" (Workers'
Compensation Law § 49-bb). The three-month waiting
period after the last exposure to the workplace noise is
intended "to permit accurate appraisal of the supposed
hearing loss" (Matter of McGoldrick v New York
Post, 20 A.D.2d 595, 595 ). Whether a claimant
continues to be exposed to harmful workplace noise pursuant
to Workers' Compensation Law § 49-bb is a factual
issue for the Board to resolve and its decision will be
upheld if supported by substantial evidence (see Matter
of MacVittie v Guterl Specialty Steel Co., 154 A.D.2d
751, 751 ; Matter of Gude v Elm Coated Fabrics Div.
of Grace Co., 79 A.D.2d 786, 787 ).
contends that he has been removed from the workplace noise
for the requisite time period. Claimant testified that he was
exposed to workplace noise beginning in 1977 and that he has
always worn the earplugs or headphones provided by the
employer for protection from the noise. The statute requires,
however, as relevant here, that claimant be removed from
exposure to the harmful noise by "use of effective ear
protection devices" (Workers' Compensation Law
§ 49-bb). In light of claimant's continued use of,
for the three months in question, the same method of hearing
protection against the workplace noise that he used while
contracting occupational hearing loss, we conclude that
substantial evidence supports the Board's decision that
claimant has not established, for the purpose of an accurate
appraisal of his hearing loss, that he has been removed from
the noise for the requisite time period (see Matter of
MacVittie v Guterl Specialty Steel Co., 154 A.D.2d at
751) . We note that the statute requires
claimant to use effective protection, but that it would be at
the employer's expense (see Workers'
Compensation Law § 49-bb). It does not appear, however,
that claimant has availed himself of such protection, other
than continuing to use the same devices he was wearing at the
time that he contracted the hearing loss.
McCarthy, J.P., Egan Jr., Rose and Devine, JJ., concur.
that the decision is affirmed, without costs.