Opinion
June 19, 1967
Appeal by an employer and its carrier from a decision which discharged the Special Disability Fund under subdivision 8 of section 15 upon finding "that the claimant's failure to hear the employer on a number of occasions does not constitute a reasonable basis on which the employer could make an informed opinion that claimant was suffering from a permanent hearing disability". When his accident occurred, claimant, a maintenance mechanic, had been employed about nine weeks. The employer's superintendent testified that about a month after hiring claimant he noticed "that he was a little hard of hearing"; that "sometimes I told him to go places and I realized he didn't hear me because he didn't go." Asked if he considered the supposed hearing defect "a permanent thing", he said, "Yes. After all, if you are hard of hearing I guess it is permanent'; and asked whether this was "a handicap in his work", he replied: "Yes and no. I mean after all it probably was. I mean if you told him to go some place and he didn't hear you why it would be a handicap." Claimant testified that since undergoing an operation at the age of three years he had been totally deaf in one ear but had no difficulty in hearing orders and directions during this or his previous employment of 17 years. He said that the superintendent's testimony was untruthful and stated, "I heard every word he said every morning." The board outlined the testimony well and concisely but did not specifically resolve the conflict as ordinarily it should do ( Matter of Ferreri v. General Auto Driving School, 22 A.D.2d 718); but we construe its decision in this case as holding that even if the testimony of the employer's superintendent be credited, it is insufficient to establish an informed judgment respecting a permanent hearing defect. In view of all the circumstances, including the time factors to which we have alluded, we find that the board's conclusion was within the area of factual determination committed to it, and cannot be disturbed by us. Decision affirmed, with costs to respondent Special Disability Fund. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gibson, P.J.