N.Y. Workers' Compensation Law § 49-ee: Liability of employer; preplacement examinations and notice to prior employers; apportionment of liability between employers

§ 49-ee. Liability of employer; preplacement examinations and notice

to prior employers; apportionment of liability between employers. 1. The

last employer in whose employment the employee was exposed to harmful

noise shall, except as herein provided, be liable for the payment of the

total compensation due the employee for his loss of hearing caused by

all of his employments in which he was exposed to harmful noise and the

employee shall not be required to give notice to, or to file any claim

against, any of his prior employers in whose employment he was exposed

to harmful noise.

2. If an employer makes a pre-placement examination which shows that

the employee has a pre-existing loss of hearing which may be due to a

prior employment or employments in which he was exposed to harmful

noise, such employer shall promptly, and in any event within ninety days

after such preplacement examination, give notice to the prior employer

or employers in writing of the result of such pre-placement examination.

Such notice shall advise the prior employer or employers that they may

be required, if a claim is filed and an award to the employee is

subsequently made, to reimburse the succeeding employer for that portion

of the award which was due to the loss caused by their prior employment,

provided, however, that no liability shall attach to any prior employer

in whose employment the last preceding harmful exposure shall have

occurred more than three years prior to the date of mailing such notice

to the prior employer or employers, and provided further that in no

event shall any employer, including the last employer, be liable for the

payment of any claim that would otherwise, and regardless of the date of

disablement fixed herein, be barred by any of the limitations contained

in sections twenty-eight and forty of this chapter. A copy of this

notice shall also be sent to the employee. Upon receipt of such notice

the prior employer or employers shall have the right to a competent

examination as to the nature and extent of the employee's loss of

hearing, and such examination shall not be invalid because the employee

has not been removed from harmful exposure for a period of at least

three consecutive months.

3. All issues as to the nature and extent of the employee's ultimate

loss of hearing due to his occupation, the total amount of compensation,

if any, due the employee, the liability for contribution, if any, of the

prior employer or employers who were given notice by the last employer

as hereinbefore provided, the amount of the contribution, if any, to be

paid by such prior employer or employers, and the liability, if any, of

the last employer and the amount of compensation, if any, to be paid by

such last employer, shall be determined only after the employee shall

have been removed from harmful exposure for a period of at least three

consecutive months, whether working for one or more employers, and after

his disablement as set forth in section forty-nine-bb of this article.

If, upon the filing of any claim, the last employer decides to

controvert the right to compensation upon any ground he shall file a

notice of controversy with the chairman as provided in section

twenty-five of this chapter. If, upon the filing of any claim, any prior

employer who was given notice as hereinbefore provided decides to

controvert the liability for contribution he shall promptly inform the

last employer and the workers' compensation board in writing so that

such issue may be determined together with, and at the same time as, the

employee's claim for compensation against the last employer. If the last

employer in whose employment there was an exposure to harmful noise does

not give the employee a replacement examination, or does not give notice

as provided herein to the prior employer or employers, then such last

employer, except as herein provided, shall be liable for the employee's

entire occupational loss of hearing without the right to reimbursement

from the prior employer or employers.