In the Matter of Anthony P. Depczynski, Respondent, v. Adsco/Farrar & Trefts
et al., Workers' Compensation Board, Appellants
84 N.Y.2d 593, 644 N.E.2d 1314, 620 N.Y.S.2d 758 (1994).
December 8, 1994
3 No. 177 (1994 NY Int. 208) Decided December 8, 1994
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
William L. Weinstock, for appellants Adsco/Farrar, et al.
Theresa E. Wolinski, for appellant Board.
John A. Collins, for respondent.
KAYE, CHIEF JUDGE:
Under a special statute relating to workers' compensation claims for
occupational hearing loss, claims must be filed, in cases of delayed
discovery, within 90 days after "knowledge" that the hearing loss is
causally related to the employment (Workers' Compensation Law
49-bb). Where the employee himself attributed a recognized hearing
loss to occupational noise exposure, but did not medically confirm
that belief for more than ten years, when was there "knowledge"
sufficient to trigger the 90-day limitations period? We conclude that
the statute's knowledge requirement was satisfied, and the 90-day
period commenced, by the employee's own admitted awareness of injury
and causation, even in the absence of formal medical diagnosis.
Claimant was hired in 1948 as a laborer in the shop area of Farrar &
Trefts (now Adsco Manufacturing Corp.), a boilermaker and metal
fabricator. For 34 years he was regularly exposed to what he described
as "very, very heavy noises" caused by riveting, hammering and other
heavy metalwork. Claimant left Adsco in June 1980 and has not been
exposed to loud noise in subsequent employment. Nearly ten years
later, in December 1989, claimant filed a Workers' Compensation claim
for hearing loss caused by exposure to injurious noise while employed
by Adsco/Farrar & Trefts. Adsco's Workers' Compensation carrier, the
State Insurance Fund, controverted the claim on several grounds,
primarily untimeliness.
Approximately a year later, in November 1990, claimant was fitted for
a hearing aid and in January 1991 was examined by Dr. Sayeed Nabi, an
otolaryngologist, who diagnosed a "noise induced, moderate to severe
neurosensory hearing loss" of 41.9%. According to claimant, Dr. Nabi
SNIPPETS:
KAYE, CHIEF JUDGE:
Under a special statute relating to workers' compensation claims for occupational hearing
We conclude that the statute's knowledge requirement was satisfied, and the 90-day period
Claimant was hired in 1948 as a laborer in the shop area of Farrar & Trefts (now Adsco
Claimant left Adsco in June 1980 and has not been exposed to loud noise in subsequent
Nearly ten years later, in December 1989, claimant filed a Workers' Compensation claim for
Adsco's Workers' Compensation carrier, the State Insurance Fund, controverted the claim on
When asked if he knew at that time "that your hearing problem was due to your work at Adsco"
The Workers' Compensation Board reversed and dismissed the claim as untimely, finding that
The Appellate Division reversed and reinstated the claim, holding that only "actual
We granted leave to respondents Adsco, State Insurance Fund and Workers' Compensation Board,
Occupational diseases, however, which may manifest themselves--and their relationship to the
While claims must generally be brought within two years after the date of disablement, the
Claims for occupational disease must be filed "within two years after disablement and after
Respondents answer that the statute simply requires "knowledge," not a medical diagnosis, and
That he has been injured in fact may be unknown or unknowable until the injury manifests
Claimant is properly chargeable with his decade-long delay in seeking the medical or legal
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