Claim of Witucki v. American Machinery & Foundry Co.

Appellate Division of the Supreme Court of New York

Claim of Witucki v. American Machinery & Foundry Co.

24 A.D.2d 906, 264 N.Y.S.2d 213, 1965 N.Y. App. Div. LEXIS 3037

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 10, 1965

StatusPublished

This text of 24 A.D.2d 906 (Claim of Witucki v. American Machinery & Foundry Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Witucki v. American Machinery & Foundry Co., 24 A.D.2d 906, 264 N.Y.S.2d 213, 1965 N.Y. App. Div. LEXIS 3037 (N.Y. Ct. App. 1965).

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Opinion

Memorandum by the Court.

The “ last employer ”, within the purview of subdivision 1 of section 49-ee of the Workmen’s Compensation Law, appeals from a decision awarding for disablement due to loss of hearing; and in its brief appears to limit the issue to its contention that the award for 24% loss of hearing is not supported by substantial evidence. The brief further states, however, that the “ total overall permanent occupational loss of hearing is 24 per cent binaural” and proceeds to argue that the award should be limited to the 1%% binaural loss incurred in its employment. Under subdivision 1 above referred to, however, the “ last employer ” is “ liable for the payment of the total compensation due the employee for his loss of hearing caused by all of his employments in which he was exposed to harmful noise ”. The decision and award, as between claimant and the appellants at least, were entirely correct under the statute, are supported by substantial evidence, as well as by appellants’ concession above quoted, and must be affirmed. Upon the inadequate record before us, it is not at all clear whether or not the issue of reimbursement is open and before us. There is no indication in appellants’ brief that it is; and the record is incomplete in, among other things, the omission therefrom of appellants’ application for review of the Rpferee’s decision dated March 12, 1964. Reargument of the issue of reimbursement, if the complete record shall demonstrate that such issue survives, is directed, and is set down for November 22, 1965, at which time the parties may supply the original papers omitted from the present record, or typewritten copies thereof, and may file supplemental briefs if they be so advised. Gibson, P. J., Herlihy, Taylor, Aulisi and Hamm, JJ., concur.

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Memorandum by the Court.

The “ last employer ”, within the purview of subdivision 1 of section 49-ee of the Workmen’s Compensation Law, appeals from a decision awarding for disablement due to loss of hearing; and in its brief appears to limit the issue to its contention that the award for 24% loss of hearing is not supported by substantial evidence. The brief further states, however, that the “ total overall permanent occupational loss of hearing is 24 per cent binaural” and proceeds to argue that the award should be limited to the 1%% binaural loss incurred in its employment. Under subdivision 1 above referred to, however, the “ last employer ” is “ liable for the payment of the total compensation due the employee for his loss of hearing caused by all of his employments in which he was exposed to harmful noise ”. The decision and award, as between claimant and the appellants at least, were entirely correct under the statute, are supported by substantial evidence, as well as by appellants’ concession above quoted, and must be affirmed. Upon the inadequate record before us, it is not at all clear whether or not the issue of reimbursement is open and before us. There is no indication in appellants’ brief that it is; and the record is incomplete in, among other things, the omission therefrom of appellants’ application for review of the Rpferee’s decision dated March 12, 1964. Reargument of the issue of reimbursement, if the complete record shall demonstrate that such issue survives, is directed, and is set down for November 22, 1965, at which time the parties may supply the original papers omitted from the present record, or typewritten copies thereof, and may file supplemental briefs if they be so advised. Gibson, P. J., Herlihy, Taylor, Aulisi and Hamm, JJ., concur.

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Bluebook (online)

24 A.D.2d 906, 264 N.Y.S.2d 213, 1965 N.Y. App. Div. LEXIS 3037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-witucki-v-american-machinery-foundry-co-nyappdiv-1965.