Claim of Slawinski v. J. H. Williams & Co.

| N.Y. App. Div. | Jan 7, 1948

Foster, J.

(dissenting). Appeal by employer and its insurance carrier from a schedule award of compensation made by the Workmen’s Compensation Board for 45% loss of hearing in claimant’s left ear and 43.6% loss of hearing in his right ear.

The award was made upon the theory that claimant suffered from an occupational disease, tinnitus. Whatever the name we should say that there is clear evidence to sustain a finding that claimant suffered a partial loss of hearing because of his occupation. He worked in the forge department of the employer’s factory on machine hammers which weighed 800 to 3,000 pounds. There were approximately 100 such machines in the room where he worked and the noise was exceptionally heavy and sustained.

Assuming claimant suffered from an occupational disease his claim is governed by article 3 of the Workmen’s Compensation Law, which provides:

“ § 37. Definitions. Whenever used in this article: 1. ‘ Disability ’ means the state of being disabled from earning full wages at the work at which the employee was last employed.

“ 2. ‘ Disability ' means the act of becoming so disabled as defined in subdivision one.

“ § 38. Disablement treated as accident. The disablement of an employee resulting from an occupational disease described in subdivision two of section three shall be treated as the happening of an accident within the meaning of this chapter and the procedure and practice provided in this chapter shall apply to all proceedings under this article, except where specifically otherwise provided herein.

“ § 39. Bight to compensation. If an employee is disabled or dies and Ms disability or death is caused by one of the diseases mentioned in subdivision two of section three, * * * he or Ms dependents shall be entitled to compensation 6 e ®.”

The foregoing language is plain, and under it we fail to see how an employee who contracts an occupational disease without disability, as defined by the statute, is entitled to an award. There is no proof in the record that claimant’s wages were diminished by his partial deafness. He himself did not claim so. True, he was demoted, but for causes wholly apart from his physical condition.

Time was when an occupational disease was not compensable at all. It was not considered as accidental. Under the law as it now exists such a disease is treated as an accident, and the ordinary practice and procedure relative to accidental injuries shall apply “ except where specifically otherwise provided * * The exception of course is the definition of disability in article 3. There is no such definition under article 2. There is no basis for an interpretation of statutory language where its meaning is clear and unequivocal.

The award should be reversed and the claim dismissed, without costs.

Hill, P. J., Heffeman and Russell, JJ., concur in decision; Foster, J., dissents in an opimon; Brewster, J., taking no part.

Award affirmed, with costs to the Workmen’s Compensation Board.