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In the Matter of the Claim of THOMAS H. BENNETT, Respondent, v. POIRIER McLANE et al., Appellants, and LIBERTY MUTUAL INSURANCE COMPANY et al., Respondents. WORKMEN'S COMPENSATION BOARD, Respondent.

Appeal from a decision of the Workmen's Compensation Board, filed January 28, 1970, which found that claimant had a binaural hearing loss due to his exposure to harmful noise in his employment by Poirier McLane as a drill operator from October 24 to October 29, 1962, said exposure and loss being an occupational disease within the meaning of the Workmen's Compensation Law. Poirier McLane was the last employer in whose employment claimant was exposed to harmful noise (Workmen's Compensation Law § 49-ee) and claimant had no preplacement examination before this employment. The statute has created an absolute test, one that is not within the board's discretion (cf. Matter of Di Matteo v. Duche Son, 33 A.D.2d 1089). Decision affirmed, with costs to the Workmen's Compensation Board. Herlihy, P.J., Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur.

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MATTER OF BENNETT v. POIRIER McLANE
(Dec 21, 1970)