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.

Although Amalgamated, both here and before the Commission, argued that a gradual loss of hearing does not constitute an occupational disease, no authority is cited for that position and we note the great weight of authority is to the contrary. See, e.g., Martinez v. Industrial Commission, 40 Colo.App. 485, 580 P.2d 36 (1978); Armco Steel Corp. v. Trafton, 35 Md. App. 658, 371 A.2d 1128 (1977); Myers v. State Workmen's Compensation Comm'r., 239 S.E.2d 124 (W.Va. 1977); Green Bay Drop Forge Co. v. Industrial Commission, 265 Wis. 38, 60 N.W.2d 409 (1953); Rosati v. Despatch Shops, Inc., 298 N.Y. 813, 83 N.E.2d 860 (1949); Slawinski v. Williams Co., 298 N.Y. 546, 81 N.E.2d 93 (1948); see also 1B A. LARSON, THE LAW OF WORKMEN'S COMPENSATION § 41.50 (1982). The decision of the commission correctly noted that the list of diseases enumerated in I.C. § 72-438 is not exclusive.

The Appellate Division seems to admit the injustice but says that the remedy lies with the Legislature, basing this conclusion on a reading of the statute which seems at variance with some of the court's own earlier holdings (see Matter ofCole v. Saranac Lake Gen. Hosp., 282 App. Div. 626; Matter of Stephenson v. Suffolk Sanatorium, 276 App. Div. 1044, and Matter of Reisinger v. Liebmann Breweries, 7 A.D.2d 658.) As it seems to us, the board's determination and award was not only in accord with the reasonable meaning of the statute but was compelled by a controlling decision, Matter of Slawinski v. Williams Co. ( 298 N.Y. 546), and that we must reverse the Appellate Division. Slawinski's hearing became impaired because of employment conditions but he continued to work without lost time or decrease in earnings. The board and the Appellate Division held (and this court approved) that, although he was not "economically" or "financially" disabled, he was disabled in the sense of the statute because he was physically impaired.

See 1B Larson at § 41.51, 7-426. We need but quickly glance at the resultant legislative flurry which accompanied the ruling in Slawinski v. J.H. Williams, 298 N.Y. 546, 81 N.E.2d 93 (1948) to discount such thought. The New York Court of Appeals in Slawinski permitted recovery for occupational deafness without any showing of wage loss. Fearing a similar flood of hearing loss claims throughout the nation, the ruling caused "[t]he greatest flurry in the occupational disease field after the recognition of silicosis as a compensable disease in the early 1930's and before the advent of the asbestos crisis."

So, in Ciavarro ( 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 appellant further argues that the record establishes that the claimant has suffered no loss of earnings and therefore, not entitled to a schedule loss. Suffice it to say that a schedule award may be made without any proof of a present loss of earnings. (Cf. Matter of Slawinski v. Williams Co., 273 App. Div. 826, affd. 298 N.Y. 546.) "Disability", as used in the context of a schedule award, means "impairment of earning capacity" as distinguished from "loss of earnings". (See Matter of Marhoffer v. Marhoffer, 220 N.Y. 543.) Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.

But the board, in our view, could find with supportive medical evidence that they were then suffering from substantial permanent hearing impairments occupationally caused. Moreover, in the circumstance of the take-over of the plant by an employer not amenable to the provisions of the Workmen's Compensation Law 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.) As we have noted claimants were in the employ of Despatch Shops, Inc., on the date of disablement and for many prior years.

There is, perhaps, a difference between a claimant who would, had he known his condition, have stopped work, and one who knows it and, postponing surgery to correct it, continues to work at full wages. A literal reading of the statute was suggested by Judge FOSTER in dissenting in Matter of Slawinski v. Williams Co. ( 273 App. Div. 826); but although the majority decision here, decided without memorandum or opinion, was affirmed ( 298 N.Y. 546) without opinion, the case involved an impairment of hearing and the reporter's syllabus in the Court of Appeals notes (p. 547) that it was argued by the board that it might allow a schedule award in a case of impaired hearing and that it was not limited by the literal definitions of section 37. The decision, therefore, seems distinguishable. The decision in Matter of Mastrodonato v. Pfaudler Co. ( 307 N.Y. 592) did not reach the point we deal with here; the court there dealt with an accident.

' In Matter of Oddi v. Cabaret Hurricane (278 A.D. 261, 264) the late Justice DEYO wrote, 'Despite the language of section 37 of the Workmen's Compensation Law, it would appear that in a case involving a schedule loss due to occupational disease, a claimant need not suffer an actual loss of time or wages to permit the board to fix the date of disablement. (Matter of Slawinski v. Williamss&sCo., 298 N.Y. 546.)' In Matter of Yuras v. Union Tables&sSpring Co. (279 A.D. 679) we find the following, 'Appellants argue that because he lost no time, except part of a day, and no wages, that he did not become disabled within the meaning of section 37 of the Workmen's Compensation Law. If the application of this section is taken exclusively and construed literally appellants' argument is valid.

Despite the language of section 37 of the Workmen's Compensation Law, it would appear that in a case involving a schedule loss due to occupational disease, a claimant need not suffer an actual loss of time or wages to permit the board to fix the date of disablement. ( Matter of Slawinski v. Williamss&s Co., 298 N.Y. 546.) The evidence is sufficient to sustain the findings that claimant became disabled, at least in part, due to Dupuytren's contracture of the left hand; that this was an occupational disease contracted due to the nature of the employment, within twelve months previous to the date of disablement as fixed.