Credible, Job-Specific Proof Required to Fix “Last Harmful-Noise Employer” Liability for Occupational Hearing Loss Under Workers’ Compensation Law § 49-ee

1. Introduction

In Matter of Kowalski v A Quest Corp. (2026 NY Slip Op 03343), the Appellate Division, Third Department reviewed a Workers’ Compensation Board determination disallowing an occupational disease claim for binaural (both ears) hearing loss. The claimant, an asbestos handler, worked for numerous employers over decades and alleged that prolonged workplace noise caused his hearing loss. Because New York’s occupational hearing loss scheme places liability on the “last employer” where the worker was exposed to harmful noise, the central dispute was not whether claimant had hearing loss in the abstract, but whether his final injurious exposure occurred while working for A Quest Corporation (“Quest”) during a three-day school project in December 2015.

After years of hearings and shifting notice among multiple employers (including Vestar, Pinnacle, D&S, PAL Environmental, and Quest), a WCLJ ultimately found Quest to be the last injurious exposure employer and established the claim. On administrative appeal, the Board rescinded that determination, disallowed the claim, and closed the case. The claimant appealed to the Third Department, challenging the Board’s credibility determinations and its conclusion that he failed to prove harmful noise exposure at Quest.

2. Summary of the Opinion

The Third Department affirmed the Board. The court held that substantial evidence supported the Board’s finding that claimant failed to meet his burden to prove he was exposed to harmful (injurious) noise while employed by Quest. Although claimant testified broadly that noisy machinery and power tools were used throughout the Quest project, Quest’s owner and on-site supervisor gave consistent testimony that pipe insulation removal was performed by hand using hand tools, with only limited use of small vacuums/Micro Trap equipment and no loud power tools. The Board, as the sole arbiter of credibility, was entitled to credit Quest’s witnesses over claimant.

The court also noted (via footnote) that even though the Board directed the case be closed, the Board retains continuing jurisdiction under Workers’ Compensation Law § 123, leaving claimant able to submit additional proof regarding harmful-noise exposure and where it occurred.

3. Analysis

A. Precedents Cited

  • Matter of Mack v County of Rockland, 71 NY2d 1008 (1988)
    Cited for the statutory definition of occupational disease—“a disease resulting from the nature of employment and contracted therein” (Workers’ Compensation Law § 2 [15]). The citation anchors the threshold framework: occupational hearing loss claims are evaluated as occupational disease claims.
  • Matter of Noto v Ford Motor Co., 301 AD2d 704 (3d Dept 2003)
    Applied for the “last employer” rule in occupational hearing loss: the last employer in whose employment the worker was exposed to harmful noise is liable for total compensation due for hearing loss caused by all employments involving harmful noise (Workers’ Compensation Law § 49-ee [1]). This precedent underscores that causation across multiple jobs is aggregated, but liability is placed on the final injurious exposure employer.
  • Matter of Wiess v Mittal, 96 AD3d 1175 (3d Dept 2012)
    Used for two key propositions: (1) reaffirming the § 49-ee last harmful-noise employer principle, and (2) emphasizing that the Board is the “sole arbiter of witness credibility.” In Kowalski, this was decisive: the appellate court deferred to the Board’s credibility choice between claimant’s generalized account and the employer’s job-specific testimony.
  • Matter of Rushnek v Ford Motor Co., 85 AD2d 824 (3d Dept 1981)
    Cited alongside the other hearing-loss precedents to confirm the long-standing nature of the last injurious exposure allocation in hearing-loss claims. The decision treats § 49-ee as a settled legislative choice: simplify administration by fixing liability at the last harmful exposure.
  • Matter of Granville v Town of Hamburg, 136 AD3d 1254 (3d Dept 2016)
    Cited for claimant’s burden: the claimant must establish both who the last harmful-noise employer was and that harmful noise exposure occurred during that employment. Granville is also used as a comparison case: the court contrasts situations where evidence can satisfy the burden with the present record, which the Board found lacking as to Quest.
  • Matter of Williams v Colgate Univ., 54 AD3d 1121 (3d Dept 2008)
    Reinforces the burden allocation: claimant must prove harmful-noise exposure at the alleged last employer. Its role here is doctrinal—placing the evidentiary onus squarely on the claimant in last-exposure disputes.
  • Matter of Spada v Keeler Constr. Co., 242 AD3d 1276 (3d Dept 2025)
    Cited for the “substantial evidence” standard supporting Board determinations in exposure-based disputes. The court uses it to justify affirmance where the Board’s finding has record support, even if another factfinder might have credited different testimony.
  • Matter of Gandurski v Abatech Indus., Inc., 194 AD3d 1329 (3d Dept 2021)
    Supports the same principle: Board determinations on exposure and credibility will be upheld if supported by substantial evidence. It reinforces appellate restraint in reweighing proof.
  • Matter of Corina-Chernosky v Dormitory Auth. of State of N.Y., 157 AD3d 1067 (3d Dept 2018)
    Cited as additional authority for affirmance where the record contains substantial evidence supporting the Board’s conclusions regarding exposure or proof deficits.

Collectively, these precedents frame Kowalski as an application—and sharpening—of two themes: (1) § 49-ee’s last harmful-noise employer liability rule, and (2) deference to the Board on credibility and exposure factfinding under the substantial evidence standard.

B. Legal Reasoning

1. Statutory Structure: Occupational Disease and the Hearing Loss “Last Employer” Rule

The court began with the statutory definition of occupational disease (Workers’ Compensation Law § 2 [15]) and then focused on Workers’ Compensation Law article 3-a, specifically Workers’ Compensation Law § 49-ee (1). Under § 49-ee (1), liability for hearing loss compensation is imposed on the last employer in whose employment the worker was exposed to harmful noise—regardless of whether earlier employments also contributed. This avoids apportionment across multiple employers and channels litigation into a single, concrete factual question: where was the last harmful noise exposure?

2. Allocation of Proof: Claimant Must Prove Both “Who” and “Harmful Noise”

The court emphasized that claimant bore the burden to establish (a) which employer was the last harmful-noise employer and (b) that harmful noise exposure occurred during that employment. This matters because claimant’s work history included many employers and projects, and earlier proceedings had already eliminated other employers based on findings that later employments involved either minimal noise (e.g., domestic vacuums) or no injurious exposure sufficient for the claimed condition.

3. Credibility and Substantial Evidence: Why Quest Won

The dispute centered on conflicting testimony about the specific Quest school project. Claimant described continuous operation of noisy tools and machines (e.g., chipping guns, grinders, commercial vacuums, Micro Trap filtration systems) and asserted he used various power tools as an asbestos handler. In contrast, Quest’s owner and on-site supervisor testified consistently that:

  • insulation removal was done by hand (wetting pipes, removing insulation manually);
  • pipes were cleaned using brushes/scrapers and a wire brush/pan;
  • no loud power tools (Sawzalls, chipping guns, grinders, electric saws) were used or permitted;
  • small vacuums and Micro Traps were used only minimally (and the job was not noisy enough to require hearing protection).

The court held that the Board was entitled to credit the employer witnesses. Once the Board found no harmful noise exposure at Quest, claimant could not satisfy § 49-ee’s foundational requirement for fixing liability on Quest as the last harmful-noise employer. The Third Department therefore affirmed because the Board’s conclusion had “substantial evidence” support in the record.

4. Procedural Note: “Closed” Does Not Mean “Jurisdiction Lost”

In a noteworthy footnote, the court acknowledged that even though the Board directed closure, Workers’ Compensation Law § 123 preserves the Board’s continuing jurisdiction. Practically, this signals that disallowance for failure of proof in a last-exposure identification dispute is not necessarily the end of the road if new, material evidence emerges regarding where harmful noise exposure occurred.

C. Impact

  • Sharper evidentiary expectations for “last harmful-noise employer” disputes.
    Kowalski underscores that generalized descriptions of a trade’s typical noisy tools may be insufficient when the alleged last injurious exposure turns on a particular project’s methods and equipment. Employers can defeat last-exposure designation with detailed, consistent, job-specific testimony about tools used, work practices, and noise conditions.
  • Reinforcement of Board-centric factfinding.
    By grounding affirmance in credibility deference, the decision reinforces that appellate review is limited: if the Board has a rational basis supported by record evidence, the court will not reweigh testimony.
  • Strategic consequences for claimants in multi-employer hearing loss cases.
    Claimants should anticipate the need for corroboration of harmful-noise exposure at the final employment—e.g., contemporaneous job records, coworker testimony, site safety documentation, equipment logs, industrial hygiene/noise data, or other objective evidence that ties loud exposure to that specific employer and project.
  • Continued pathway for reopening with new proof.
    The § 123 reminder may encourage further development of evidence where earlier proceedings have discharged multiple employers and the remaining last-exposure candidate is contested.

4. Complex Concepts Simplified

  • Occupational disease (Workers’ Compensation Law § 2 [15]): A condition caused by the nature of the work and contracted through employment, not a single accident.
  • Binaural hearing loss: Hearing loss in both ears.
  • “Last employer” / “last injurious exposure” rule (Workers’ Compensation Law § 49-ee [1]): In occupational hearing loss cases, the employer where the worker was last exposed to harmful noise pays the full hearing-loss compensation, even if earlier jobs contributed.
  • Harmful (injurious) noise: Noise exposure of a character and intensity capable of contributing to occupational hearing loss. The critical question is not whether the workplace had any sound, but whether the exposure was harmful in the statutory sense.
  • Burden of proof: The claimant must prove the facts needed to win—here, that Quest was the last employer where claimant was exposed to harmful noise.
  • Board as “sole arbiter of witness credibility”: The Board decides which witnesses to believe. Appellate courts generally do not second-guess those credibility calls.
  • Substantial evidence: A deferential review standard—enough relevant proof that a reasonable factfinder could reach the Board’s conclusion, even if other conclusions are possible.
  • Continuing jurisdiction (Workers’ Compensation Law § 123): Even after closure, the Board may retain authority to revisit matters under certain circumstances, allowing new evidence to be considered.

5. Conclusion

Matter of Kowalski v A Quest Corp. reinforces a practical rule with significant consequences in occupational hearing loss litigation: to impose liability under Workers’ Compensation Law § 49-ee (1), the claimant must present credible, job-specific proof of harmful-noise exposure at the alleged last employer. Where the Board credits consistent employer testimony that work was performed manually without loud tools, and that finding is supported by substantial evidence, the courts will uphold disallowance—even if the claimant worked in a typically noisy trade and sincerely believes the job involved loud equipment. At the same time, the decision highlights that “closure” does not extinguish the Board’s continuing jurisdiction under Workers’ Compensation Law § 123, preserving the possibility of revisiting the claim if materially new proof of harmful-noise exposure later emerges.