Hearing loss is the work injury almost nobody files.
There is no moment to point at. Nobody fell, nothing was dropped, no ambulance came. It arrives across twenty years of saws, jackhammers, compressors and engines, and by the time the television is too loud and your wife is repeating herself, it feels like age rather than a claim.
New York treats it as a claim, and it has its own set of rules that catch people out.
It is a schedule award
Occupational loss of hearing has its own article of the Workers’ Compensation Law — Article 3-A — and the right to compensation under it runs through the schedule provisions in § 15(3). Which means this is not a wage-replacement claim that ends when you go back to work. It is a schedule loss of use award, paid on a fixed number of weeks:
| Loss | Weeks |
|---|---|
| Hearing, one ear | 60 |
| Hearing, both ears | 150 |
Your percentage of loss determines what fraction of those weeks you are awarded, and your average weekly wage sets the rate. You can be working full time and still be owed this.
The three-month rule
This is the provision that makes hearing claims different from every other occupational disease claim, and it is worth reading slowly.
Under § 49-bb, compensation for occupational loss of hearing becomes due and payable, at the employee’s choice, three months after either:
- removal from exposure to harmful noise in employment, or
- separation from work for the last employer in whose employment you were at any time exposed to harmful noise.
Now the part people assume wrongly. Option one does not mean quitting. The statute says in terms that removal from exposure for the three-month waiting period may be achieved by use of effective ear protection devices provided at the expense of the employer.
So the choice is not between your claim and your job. Three months of properly protected work, at the employer’s expense, satisfies the same waiting period as walking away would.
Why the date of disablement matters so much here
The statute fixes it precisely: the last day of that period of removal or separation is the date of disablement.
In an occupational disease claim the date of disablement does the work that an accident date does everywhere else. It anchors the filing clock — see the two-year deadline — and it sits underneath the wage calculation.
Which is why these claims are worth getting advice on before the three months are counted rather than after. The date is not arbitrary, but when the clock starts is a function of choices you are making right now without realizing they are choices.
Which employer pays
Generally, the last employer in whose employment you were exposed to harmful noise bears the liability.
That surprises people, because it is frequently not the employer where the damage was actually done. Twenty-two years in demolition followed by two years in a noisy warehouse does not put the claim back on the demolition company. The statute picks the last exposure, not the worst one.
The ninety-day floor
Article 3-A also sets a minimum. Under § 49-ff, in the absence of substantial evidence to the contrary, no employee is entitled to an award for occupational loss of hearing unless they were employed in work exposing them to harmful noise for at least ninety days in this state.
Two things in that sentence are worth pulling out.
Ninety days is a low bar. It is three months of a working life, not three years. Almost anyone with a trade behind them clears it without thinking about it.
But the exposure has to have been in New York. A career spent in noise somewhere else, followed by a short stint here, is a different conversation — and it is a conversation worth having rather than assuming either way, not least because the statute frames the requirement as applying absent substantial evidence to the contrary.
What actually proves it
- An audiogram. This is the case. Get tested by a provider authorized by the Board.
- Your occupational history in detail — trades, years, the specific equipment, whether you worked in enclosed spaces, how close you stood to it.
- Whether hearing protection was ever provided, and whether it was the kind that works. “There were foam plugs in a box somewhere” is a different fact from a fitted, enforced program.
- Co-workers. In this kind of claim the people who stood next to the same machine are useful witnesses, and often have the same problem.
What the carrier will say
Expect the argument that your hearing loss is your age, or your hunting, or your years in a band, or a condition you had before you ever started the job. That is the standard response and it is not a reason to abandon a claim.
It is, however, the reason the occupational history has to be specific. “Loud job for a long time” loses. Named equipment, named years, named sites is what answers it.
Who this tends to be
Construction and demolition, road and bridge work, manufacturing and machine shops, airport ramp work, transit and rail, sanitation, and firefighting. If you have spent a career around engines or pneumatic tools on Staten Island or in Brooklyn, you are in the population this article was written for.
Hearing loss also sits alongside the other slow-onset conditions covered on our page about occupational disease claims, and the proof problems are similar.
Talk to a Staten Island workers’ comp attorney
If people have started repeating themselves to you and you have spent your working life around noise, that is worth a conversation — particularly before you leave the job or start counting three months.
Call (718) 701-2776. The consultation costs nothing, and you will speak with me.
Nothing on this page is legal advice about your own claim. Whether a particular loss is occupational, and what it is worth, are decided by the Board on the medical and vocational evidence in the record.