Zalenski v. Crucible Steel, Inc.

• Decision Date: 30 December 1982
• Citation: 458 N.Y.S.2d 46,91 A.D.2d 807
• Parties: In the Matter of the Claim of Albert ZALENSKI, Respondent, v. CRUCIBLE STEEL, INC., Appellant. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 46

458 N.Y.S.2d 46

91 A.D.2d 807

In the Matter of the Claim of Albert ZALENSKI, Respondent, v. CRUCIBLE STEEL, INC., Appellant.

Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division,

Third Department.

Dec. 30, 1982.

Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo (Ronald E. Weiss, Buffalo, of counsel), for appellant.

Robert Abrams, Atty. Gen. (Howard B. Friedland, Asst. Atty. Gen., of counsel), for respondent Workers' Compensation Board.

Before MAHONEY, P.J., and SWEENEY, MAIN, CASEY and WEISS, JJ.

MEMORANDUM DECISION.

Appeal from a decision of the Workers' Compensation Board, filed December 18, 1981, which held that the self-insured employer must provide claimant with a hearing aid.

While the minutes of the original hearing are not before us, it appears that claimant worked for Crucible Steel, the employer, for many years before his retirement and it was concluded that while so employed he was continually exposed to severe industrial noise. Realizing that he was suffering a substantial hearing loss, claimant, after consulting with his physician, initiated a claim for occupational loss of hearing pursuant to article 3-A of the Workers' Compensation Law (all references are to the Workers' Compensation Law) and on February 5, 1980 the Administrative Law Judge found, based upon the reports of the otolaryngologists and audiologists, that claimant had sustained a causally related 60% uncorrected binaural loss of hearing. He established a schedule award of $9,450. Though the hearing loss was found to be permanent and irreversible, the reports of the attending physician indicated that, "[h]opefully amplification in the form of a hearing aid would be of help to this patient in the future". The employer did not challenge either the findings or the award and the case was closed. Some months thereafter in the spring and summer of 1980, claimant's representative sought authorization for the purchase of a hearing aid and upon reopening of the case argued that it was the employer's responsibility to furnish the same under the requirements of subdivision (a) of section 13 and under this court's decision in Matter of Robinson v. Remington Rand Div. of Sperry Rand Corp., 29 A.D.2d 586, 285 N.Y.S.2d 394.

The board, in rejecting the employer's arguments and in affirming the referee, found:

based on the entire record including the medical report of Dr. Metzger, that Self Insurer must provide claimant with a hearing aid (Robinson v. Remington Rand, 29 A.D.2d 586, 285 N.Y.S.2d 394).

Though perhaps not a monument to clarity and detail of expression, nonetheless, it seems reasonably clear that the board was relying on its own decision in Matter of Robinson (supra) to the effect that a hearing aid was included by the language of subdivision (a) of section 13 and upon the uncontradicted medical testimony of claimant's physician that the hearing aid would likely be of benefit to claimant in the future.

The employer appeals contending (1) that Matter of Robinson (supra) is in no way dispositive of any issues here, (2) that the omission of any reference to hearing aids or any audiological devices or methods in subdivision (a) of section 13 plainly signaled the Legislature's intent that the employer not be responsible for such devices, (3) that requiring the employer to provide such devices after the grant of a schedule award for an uncorrected loss of hearing constitutes a double recovery, and (4) that the decision is in direct contravention of the board's own rule, 12 NYCRR 350.1 ^*, in effect at the time and promulgated pursuant to sections 49-gg and 117, which provided: "Since the employer will be paying for the 'uncorrected' loss of hearing, the employer should not be obligated to furnish hearing aids (including accessories and replacements) in cases of occupational loss of hearing".

At the outset we agree that Matter of Robinson (supra) provides little, if any, meaningful assistance because no schedule award was involved and the appellants, on appeal, abandoned their contention that a hearing aid was not covered within subdivision (a) of section 13. However, we hold now that such a device is included within the ambit of the "other devices or appliances necessary" phrase of subdivision (a). We cannot subscribe to the employer's theory that the specific recognition of the employer's obligation to furnish eyeglasses contained in the 1965 amendment to subdivision (a) together with the lack of any mention of hearing devices manifests the Legislature's intent that the latter be excluded. "The intention of the Legislature is first to be...