Opinion
March 16, 1971
Appeals from a decision of the Workmen's Compensation Board, filed February 18, 1970, which apportioned the award to claimant for an occupational hearing loss between McKaig-Hatch, Inc., the last employer, and General Drop Forge Corp., a prior employer. Claimant, a millwright over the years for various concerns, was given a pre-employment physical examination in February, 1959 for General Drop Forge by Dr. Glauber, an ear specialist, who found a hearing loss of 21.6% in the right ear and 33.6% in the left, due to otosclerosis, a disease characterized by a hardening of ligaments in the middle ear area. This, he stated, is entirely different and unrelated to industrial noise trauma resulting in audition damage. In April, 1962 claimant, upon being given a pre-employment physical examination for McKaig-Hatch by Dr. Scanio, was found to have a 37% binaural loss of hearing. Upon this discovery, McKaig-Hatch notified General Drop Forge which responded that it was not liable for any of the hearing loss because, according to their Dr. Glauber, said loss had "no relationship to industrial noise trauma". Although there is no question that the employee was exposed to harmful noise at McKaig-Hatch, his hearing loss, according to Dr. Serio, diminished to 35.7% while he worked for said concern and six months after separation it fell to 33.2%. While General Drop Forge contends that it was not given notice and a chance to defend, any error in the initial assessment against it was cured effectively when the board, by its decision of December 8, 1967, rescinded that assessment and gave it an opportunity to defend on the merits. The board's determination of apportionment against General Drop Forge is based on findings that claimant was exposed to harmful noise in his employment with General Drop Forge and that his loss of hearing is due to such exposure. These findings are factual, and, thus, subject to judicial review only if there is no substantial evidence in the record to support them ( Matter of Gilbert v. Happy Hill Farm, 23 A.D.2d 931, mot. for lv. to app. den. 16 N.Y.2d 484). The reports of Drs. Serio and Scanio (see Workmen's Compensation Law, § 21, subd. 5; Matter of Dillon v. Le Roy Mach. Co., 7 A.D.2d 767) state nothing about causal relation and the testimony of Dr. Glauber was to the effect that claimant's hearing loss was "Not due to noise trauma" and that there was "Not necessarily" any nerve loss damage. There being no substantial evidence to support a finding of causal relationship at General Drop Forge, it should not be held liable on this record for claimant's hearing loss. Following the board's decision on October 18, 1966, affirming the Referee's decision finding occupational loss of hearing, notice and causal relationship and making an award for 33.2% binaural loss of hearing against McKaig-Hatch, said employer paid the claim on December 16, 1966. The gravamen of McKaig-Hatch's appeal is that there is no liability on its part because claimant's percentage of hearing loss decreased while he was in its employ, and, in the absence of an appeal therefrom, the decision of October 18, 1966 is final and conclusive upon the question of its liability to claimant (Workmen's Compensation Law, § 23). Decision reversed, and claim remitted for further proceedings not inconsistent herewith, with costs to General Drop Forge Corp. against the Workmen's Compensation Board. Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur; Herlihy, P.J., dissents and votes to affirm in the following memorandum: The decision of the board should be affirmed. The statement by the majority that no appeal was taken from a prior decision of the board and, therefore, it is final and conclusive, is correct but not applicable here. Upon a request for review by both employers as a result of the Referee's decision dated May 15, 1969 the board undertook to review all of the prior proceedings and determinations including its decision of October 18, 1966 and clearly within its authority. The record shows that Dr. Scanio in a report dated November 16, 1965 stated: "He [Abel] stated that he had worked in noisy areas all of his life, including two years as a millwright at General Drop Forge and that his hearing had been impaired for 7-8 years. I next examined Mr. Abel on May 5, 1962" and that claimant sustained a loss of hearing. There was, as noted by the majority, medical evidence that the loss of hearing was not due to industrial noise trauma and thus a medical dispute but it is significant to note that there is no dispute that while working for both employers the claimant was exposed to "harmful noise" and that he sustained a loss of hearing. There is substantial evidence to sustain the board's determination.