Claim of Dendel v. R. Hoe & Co.

50 A.D.2d 625, 374 N.Y.S.2d 744, 1975 N.Y. App. Div. LEXIS 12431

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1975
• Status: Published

Opinion

— Appeal from a decision of the Workmen’s Compensation Board, filed March 22, 1974. The employer and its insurance carrier appeal from a decision of the Workmen’s Compensation Board which affirmed a referee’s decision allowing a schedule award for 28.2% loss of binaural hearing resulting from and causally related to an occupational hazard. Claimant’s hearing loss in his left ear resulted from a childhood disease. His loss of hearing in his right ear was found to be causally related to the occupational hazard. The board, in initially sending the case back to the referee for a further development of the record, stated that the binaural method of determining loss of hearing should not be utilized if the causally related loss of hearing is to only one ear. Subsequently, however, the board affirmed the referee’s decision based on the binaural formula, although the referee found the causally related loss to be in one ear. Pertinent statutes and rules promulgated thereunder have mandated that the binaural percentage of loss of hearing shall be used in determining schedule loss, even though the loss of hearing in one ear may not be causally related to claimant’s employment (Workmen’s Compensation Law, § 49-gg; 12 NYCRR 350.1). The issues in question and the law in regard thereto have been passed upon by the courts (Matter of Raskoff v Long Is. Daily Press, 38 AD2d 644; Matter of Gormeley v New York Daily News, 30 AD2d 16, affd 24 NY2d 867). Decision affirmed, with costs to the Workmen’s Compensation Board. Herlihy, P. J., Sweeney, Kane, Main and Larkin, JJ., concur.