The opinion
Jasen, J. (dissenting).
I would reverse the order of the Appellate Division and remit the claim. iSection 49-bb of article 3-A of the Workmen’s Compensation Law, in pertinent part, provides that “ Notwithstanding any other inconsistent provisions of this chapter compensation for occupational loss of hearing shall become due and payable six months after separation from work for the last employer in whose employment the employee was at any time during such *765 employment exposed to harmful noise”. Under this section, 1 submit the claimant herein must be separated from his New Jersey employer for six months before he is entitled to receive compensation for his hearing loss.
While the phrase ‘ ‘ last employer ’ ’ as used in other sections of article 3-A of the Workmen’s Compensation Law refers to the last New York State employer (Matter of Hamilton v. Healy Co., 14 A D 2d 364), I believe the purpose of the Legislature in enacting the six-month separation requirement in section 49-bb requires a different interpretation of the phrase in that section.
At our present state of medical knowledge, it appears impossible to accurately determine the permanency of -a hearing loss caused by incessant noise unless the patient is separated from the noise for at least six months. (See 1953 Report of Committee of Consultants on Occupational Loss of Hearing, 12 NYCRR 350.1, pp. 1081-1082 [reaffirmed in 1960, 12 NY'CRR 350.1, pp. 1O77-10791]; see, generally, 1A Larson, Workmen’s Compensation Law, § 41.40, pp. 622.122-622.127.) This was the primary purpose of the six-month requirement.
To construe ‘ ‘ last employer ’ ’ in the present case to mean last New York State employer would not only be inconsistent with the primary purpose of the statute, but would also reach an inconsistent result. Had the claimant in this case left Union Forging and gone to work for another New York State forging company, he would not be able to receive compensation under the statute until he separated himself from the second, noisy employment for six months. I fail to perceive any reason why in the case before us re-employment in the same noisy work outside of this State rather than within the State should change that result.
Under the interpretation I have suggested, claimant’s rights are fully protected. His claim is filed, the date of disability is fixed and the last New York employer has been determined to be the Union Forging Company. In order to be entitled to benefits he need only comply with the statutory separation period of six months away from harmful noise, after which period a proper evaluation of his hearing loss may be made.
Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating and Breitel concur in memorandum; Judge Jasen dissents and votes to reverse in an opinion.
Order affirmed.