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CLAIMANT DID NOT REMOVE HIMSELF FROM EXPOSURE TO HARMFUL NOISE FOR THREE MONTHS PRIOR TO APPLYING FOR WORKERS’ COMPENSATION FOR HEARING LOSS, CLAIM PROPERLY DENIED.

The Third Department determined claimant was properly denied benefits for hearing loss. To qualify, claimant was required to show he used effective ear protection for three months. Claimant used the same type of ear protection he was using when he experienced the hearing loss:

Claimant contends that he has been removed from the workplace noise for the requisite time period. Claimant testified that he was exposed to workplace noise beginning in 1977 and that he has always worn the earplugs or headphones provided by the employer for protection from the noise. The statute requires, however, as relevant here, that claimant be removed from exposure to the harmful noise by “use of effective ear protection devices” (Workers’ Compensation Law § 49-bb). In light of claimant’s continued use of, for the three months in question, the same method of hearing protection against the workplace noise that he used while contracting occupational hearing loss, we conclude that substantial evidence supports the Board’s decision that claimant has not established, for the purpose of an accurate appraisal of his hearing loss, that he has been removed from the noise for the requisite time period … . We note that the statute requires claimant to use effective protection, but that it would be at the employer’s expense (see Workers’ Compensation Law § 49-bb). It does not appear, however, that claimant has availed himself of such protection, other than continuing to use the same devices he was wearing at the time that he contracted the hearing loss. Matter of Durkot v Newsday, 2017 NY Slip Op 04341, 3rd Dept 6-1-17

WORKERS’ COMPENSATION (CLAIMANT DID NOT REMOVE HIMSELF FROM EXPOSURE TO HARMFUL NOISE FOR THREE MONTHS PRIOR TO APPLYING FOR WORKERS’ COMPENSATION FOR HEARING LOSS, CLAIM PROPERLY DENIED)/HEARING LOSS (WORKERS’ COMPENSATION, CLAIMANT DID NOT REMOVE HIMSELF FROM EXPOSURE TO HARMFUL NOISE FOR THREE MONTHS PRIOR TO APPLYING FOR WORKERS’ COMPENSATION FOR HEARING LOSS, CLAIM PROPERLY DENIED)

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