
    In the Matter of the Claim of Daniel Thomas, Claimant, v Bethlehem Steel Corporation, Respondent. Workers’ Compensation Board, Appellant.
    Argued September 10, 1984;
    decided October 18, 1984
    
      POINTS OF COUNSEL
    
      Robert Abrams, Attorney-General (Morris N. Lissauer, Peter H. Schiff, Carlin Meyer and Reed Brody of counsel), for appellant.
    I. The court below erred in failing to recognize that the 1980 amendments to the Workers’ Compensation Law that liberalized compensation for hearing loss extended, rather than restricted, the applicable limitations period so as to permit the claim here at issue. (Matter of Collins v Aluminum Co., 44 NY2d 692; Matter of Citny v Atlas Steel Casting Co., 33 AD2d 853; Matter ofDi Matteo v Duche & Son, 33 AD2d 1089; Matter of Shannon v Introne, 80 AD2d 834, 53 NY2d 929; McCluskey v Cromwell, 11 NY 593.) II. The court below’s interpretation of the statute is untenable; its construction is contrary to the liberalizing design of the amendments to section 49-bb of the Workers’ Compensation Law and would defeat their underlying purpose and policy. (People v Ryan, 274 NY 149; Matter of Petterson v Daystrom Corp., 17 NY2d 32; Matter of Livingston St., 82 NY 621; Hulbert v Clark, 128 NY 295; Matter of Mlodozeniec v Worthington Corp., 9 AD2d 21, 8 NY2d 918, 364 US 628; Robinson v Robins Dry Dock & Repair Co., 238 NY 271; Becker v Huss Co., 43 NY2d 527; Chase Securities Corp. v Donaldson, 325 US 304; Matter of Schmidt v Wolf Contr. Co., 269 App Div 201, 295 NY 748; Matter of Holbrook v New York State Employees’ Retirement System, 79 AD2d 63, 54 NY2d 603.)
    
      Ronald E. Weiss, Marvin H. Mason and J. Joseph Wilder for respondent.
    I. The court properly construed the language of section 49-bb so as to disallow the instant claim. (Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Civil Serv. Employees Assn. v County of Oneida, 78 AD2d 1004, 53 NY2d 603; Levine v Bornstein, 4 NY2d 241; Rankin v Shanker, 23 NY2d 111; Matter of Mulligan v Murphy, 14 NY2d 223; Sessa v State of New York, 63 AD2d 334, 47 NY2d 976; Chase Securities 
      
      Corp. v Donaldson, 325 US 304; Matter of Chrysler Props. v Morris, 23 NY2d 515; Matter of Mulligan v Murphy, 14 NY2d 223; Matter of McGoldrick v New York Post, 20 AD2d 595.) II. Prospective application of the language of section 49-bb providing a further limitation period must prevail over retroactive application reviving barred claims. (United States v Kubrick, 444 US 111; Sessa v State of New York, 63 AD2d 334, 47 NY2d 976; Matter of Beary v City of Rye, 44 NY2d 398; Matter of Mulligan v Murphy, 14 NY2d 223; Matter of Deutsch v Catherwood, 31 NY2d 487; Matter ofMcGoldrick v New York Post, 20 AD2d 595; 35 Park Ave. Corp. v Campagna, 48 NY2d 813; Wilson Mem. Hosp. v Axelrod, 76 AD2d 968, 53 NY2d 690; Matter of Mlodozeniec v Worthington Corp., 9 AD2d 21, 8 NY2d 918, 364 US 628.) III. Revival of stale claims violates the due process clauses of the United States and New York Constitutions. (Hopkins v Lincoln Trust Co., 233 NY 213; United States v Kubrick, 444 US 111; Wilson v Johns-Manville Sales Corp., 684 F2d 111; Guaranty Trust Co. v United States, 304 US 126; Braswell v Flintkote Mines, 723 F2d 527; Campbell v Holt, 115 US 620; Chase Securities Corp. v Donaldson, 325 US 304; Matter of Chrysler Props, v Morris, 23 NY2d 515; Gallewski v Hentz & Co., 301 NY 164.)
   OPINION OF THE COURT

Kaye, J.

Among recent amendments to the Workers’ Compensation Law relating to occupational hearing losses is a provision that employees whose disablement and knowledge of disablement occurred prior to October 1, 1980 would have six months from such date to file their claims (L 1980, ch 324). The question presented is whether this provision should have retroactive application. We conclude that the provision applies only to claims which were viable on October 1, 1980, and not to all claims where disablement and knowledge existed prior to October 1, 1980, and we therefore affirm the order of the Appellate Division dismissing the claim for compensation, with costs.

In 1980, the statutory scheme governing compensation claims for occupational hearing losses was altered in several respects. Formerly, an employee seeking compensation for such loss was required to be separated from his job for six months, in order to permit time to ascertain the extent of the loss and allow for possible restoration or improvement of hearing. Chapter 324 of the Laws of 1980 reduced the waiting period to three months, in conformity with new medical knowledge that the degree of hearing loss could be determined in a shorter time, and it also permitted a worker to be removed from exposure to the harmful noise itself, as by ear protection devices, rather than requiring separation from employment. Additionally, the amendment provided for a “date of discovery” exception to the Statute of Limitations; irrespective of the two-year limitations period, claims were timely if brought within 90 days after knowledge that the loss of hearing was due to the nature of the employment. Finally, and most directly pertinent, where disablement and knowledge of an occupational hearing loss occurred prior to October 1, 1980, the amended law, in section 49-bb, for the first time provided that an employee shall have six months from such date to file a claim.

Claimant retired from employment with respondent, Bethlehem Steel Corporation, a self-insured employer, on August 1, 1970. On January 16, 1981 — some IOV2 years later — he filed a claim for compensation for an alleged occupational hearing loss. Bethlehem rejected the claim on the ground, inter alia, that it was not filed within two years from the date of disablement, as required by sections 28 and 40 of the Workers’ Compensation Law in effect at the time of claimant’s retirement. The referee disallowed the claim as time-barred, but was reversed by a divided panel of the Workers’ Compensation Board, appellant herein, on the theory that section 49-bb, as amended by chapter 324 of the Laws of 1980, creates a six-month grace period for filing claims. On this same theory, four other claims against Bethlehem, similarly time-barred under the law in effect at the time of disablement, were allowed by the Board.

Each party contends, with some force, that the amendment to section 49-bb supports its position — the Board relying on what it characterizes as the unambiguous language of the provision, and Bethlehem relying on the allegedly clear intendment of the amendments which, while broadening coverage, contemplated limitations periods which would be defeated by the wholesale retroactive application of the section. What these competing contentions point to is not a ready answer to the question presented, but an ambiguity which must be resolved outside the provision itself.

As a threshold matter, this is not as the Board argues a case in which the court should defer to the construction adopted by the agency administering the statute (see Matter of Howard v Wyman, 28 NY2d 434, 438). Rather, the question is one of statutory analysis dependent only on an accurate apprehension of legislative intent, and there is little reason to accord weight to the Board’s interpretation of the amendment (see Kurcsics v Merchants Mut. Life Ins. Co., 49 NY2d 451, 459).

An amendment will in general have prospective effect only, unless its language indicates that it should receive a contrary interpretation (McKinney’s Cons Laws of NY, Book 1, Statutes, § 52, pp 101-102). The language of the amendment here in issue does not clearly indicate that it should be applied retroactively, nor does examination of the available legislative history offer up any definitive expression that it was intended to have unlimited retrospective application. While contained in the Governor’s Bill Jacket for the amendments are several expressions of alarm that the legislation would expose employers to barred claims, there is countervailing indication that the amendments in toto would engender minimal additional costs to employers and insurers, and that the premium increases, if any, resulting from the entire bill would be insignificant. If the amendment were given unlimited retroactivity as the Board urges, employers would be exposed to the revival of claims that became stale decades ago. It is undisputed by the Board — which is surely in the best position to know — that, in addition to the five claims already allowed, several hundred others, some as old as 30 years, already exist at the Board panel and law judge levels. A retroactive application would thus open the door to hundreds of stale claims the defense of which may, by virtue of the passage of time, now be impossible.

From the absence of clear legislative indication that the statute be applied retrospectively, the potential drastic consequences of such an interpretation, and the balance of the legislative scheme, we are persuaded that the measure should not be given retroactive application (see Matter of Beary v City of Rye, 44 NY2d 398). Subdivision 2 of section 49-ee of the Workers’ Compensation Law, at the time of the amendment in question, provided that “in no event shall any employer * * * be liable for the payment of any claim that would otherwise * * * be barred by any of the limitations contained in sections twenty-eight and forty of this chapter.” In the 1980 amendments, this provision was left undisturbed. Now to give the amended section 49-bb retroactive application, reviving claims that were already barred at the time of its enactment, would require us to ignore the provisions of section 28 of the Workers’ Compensation Law. On the other hand, construing the amendment to section 49-bb to apply only to claims which were viable at October 1, 1980 would give force to both sections of the statute, so that neither need be ignored (see McKinney’s Cons Laws of NY, Book 1, Statutes, § 192; see, also, Minkowitz, Practice Commentary, McKinney’s Cons Laws of NY, Book 64, Workers’ Compensation Law, § 49-bb, 1983-1984 Pocket Part, pp 247-248).

We read the six-month “grace” period for employees whose disablement and knowledge of disablement occurred prior to October 1,1980 as a transitional measure for those with viable claims at October 1,1980, who could by virtue of the amendment otherwise have had their remaining time to file claims reduced even below three months. This interpretation provides a rational explanation for the amendment, it puts section 49-bb in harmony with the remainder of the statute, and it avoids revival of long-barred claims, and is therefore to be preferred in the absence of clear contrary expression from the Legislature.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Meyer, J.

(dissenting). Viewed in relation to its wording and the setting in which enacted, the legislative mandate contained in the sixth sentence of section 49-bb of the Workers’ Compensation Law as amended by chapter 324 of the Laws of 1980 that, “An employee whose disablement and knowledge of disablement occurred prior to October first, nineteen hundred eighty shall have six months from such date to file a claim” can have no other meaning than that claims otherwise barred by limitations on October 1, 1980 were revived subject only to the further limitation that such a revived claim be presented on or before March 31, 1981. I, therefore, respectfully dissent.

Considered solely on the basis of the words used the sentence is unambiguous. The natural and obvious import of those words is that it covers all employees whose disablement and knowledge of disablement occurred at any time prior to October 1, 1980. Had the Legislature intended the construction now adopted by the majority, it could readily have added “and not otherwise barred by the limitations contained in sections twenty-eight and forty of this chapter” and, indeed, need only have looked to the second sentence of subdivision 2 of section 49-ee in order to find the appropriate language. The conclusion that the amendment does not clearly indicate that it shall be applied retroactively (majority opn, at p 154) is a strained reading of its language, inconsistent with the normal reading of “an employee” to embrace “any” employee who meets the description that follows. It would, of course, have been possible for the Legislature to have tacked on to the end of the sentence the phrase “even though his claim would otherwise be barred by the limitations contained in sections twenty-eight and forty of this chapter” and thus made indelibly clear its intention. We have not, however, normally required such redundancy in order to establish what the language used, read as commonly understood, imports.

Nor can I agree with the majority’s conception (majority opn, at p 154) that the 1980 amendment fixed “limitations periods which would be defeated by the wholesale retroactive application of the section.” True, the 1980 amendment added to section 49-bb, as a new fifth sentence, preceding the new sixth sentence quoted in the first paragraph of this opinion, the provision that, “A claim for loss of hearing under this article shall not be barred by the failure of the employee or his dependents to file a claim within the two year period prescribed by section twenty-eight of this chapter, provided such claim shall be filed after such two year period within ninety days after knowledge that the loss of hearing is or was due to the nature of the employment.” That sentence, however, added no limitations period that was not already applicable by reason of the proviso in the second sentence of subdivision 2 of section 49-ee 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.”

That proviso, contained in an article devoted solely to occupational loss of hearing, by referring to “any of the limitations” contained in sections 28 and 40, made applicable to loss of hearing cases all of the limitations provisions of those sections. Section 28 contained two such provisions: one establishing two years after accident or death as a general period of limitations and the other covering disablement from specified causes, not including loss of hearing in the listing but nonetheless made applicable to loss of hearing by the subdivision 2 of section 49-ee proviso quoted above, that a claim “shall not be barred by the failure of the employee to file a claim within such period of two years, provided such claim shall be filed after such period of two years and within ninety days after disablement and after knowledge that the disease is or was due to the nature of the employment.” Subdivision 1 of section 40 required as to an occupational disease that it be contracted within 12 months previous to the date of disablement, but that with respect to disablement resulting from the same list of causes set forth in section 28 (other than those resulting from radiation) the right to compensation “shall [not] * * * be barred by the failure * * * to file a claim within the two-year period prescribed by section twenty-eight, provided such claim shall be filed after such period of two years, within ninety days after disablement and after knowledge that the disease is or was due to the nature of the employment.” Subdivision 2 of section 40 removed radiation diseases from the 12 months contraction requirement but provided that the right to compensation would not “in such cases be barred by the failure * * * to file a claim within the two-year period prescribed by section twenty-eight, provided such claim shall be filed after such period of two years, within ninety days after disablement or death and after knowledge that the disablement or death was due to the nature of the employment.”

It is, thus, apparent that the fifth sentence added to section 49-bb in 1980 fixed no limitations period with respect to occupational loss of hearing that was not already applicable to such a claim, by reason of the incorporation in article 3-A, through subdivision 2 of section 49-ee of the limitations provisions of sections 28 and 40. Indeed the only difference between the proviso in the fifth sentence of section 49-bb and the provisos in sections 28 and 40 is that the former required filing within 90 days after knowledge alone whereas the latter two limited the time for filing to 90 days after disablement and knowledge. That distinction is, however, without a difference in light of the use in sections 28 and 40 of the conjunctive, and of the direction in subdivision 2 of section 49-ee that in no event should the employer be liable for a claim “that would otherwise, and regardless of the date of disablement fixed herein, be barred” under any of the limitation contained in sections 28 and 40. Under any of the three provisions, therefore, a loss of hearing claim is not barred though filed more than two years after disablement if filed within 90 days after knowledge that loss of hearing is or was due to the nature of the employment.

The only other change made by chapter 324 of the Laws of 1980 was to reduce the waiting period from six months to three months and make it run from removal from exposure to harmful noise rather than separation from work for the last employer in whose employment the employee was exposed to harmful noise. The date of disablement from which the two-year period ran was thus placed three months earlier than it had been under the pre-1980 law. That, however, affects only the applicability of the two-year period, not the 90 days after knowledge provision which applies only to a “claim * * * filed after such period of two years” but in no way limits how long after the two-year period a “knowledge” claim can be filed. The 90-day provision is thus an alternate to the two-year limitation, independent of it, and requiring only that, whenever disablement occurred in fact, the claim be made within 90 days after knowledge that loss of hearing was due to the nature of employment. Reduction of the waiting period by three months therefore necessitated no extension as to the knowledge provision, particularly since that provision had been part of the law for more than 20 years (cf. Parmenter v State of New York, 135 NY 154, 167; see Gilbert v Ackerman, 159 NY 118, 124) and since the bill which had been passed by both houses of the Legislature on June 12, 1980 and was signed into law on June 19,1980, was not effective until October 1, 1980, more than three months (and therefore more than 90 days) thereafter.

Notwithstanding that fact, the Legislature in amending section 49-bb directed that any employee “whose disablement and knowledge of disablement” (emphasis supplied) occurred prior to October 1, 1980 would have until March 31, 1981 to file a claim. Had it intended to protect only those whose two-year “disablement” period of limitations would be affected by the 1980 amendment, it need only have said “whose disablement occurred prior to October 1, 1980 and who had not prior to that date had knowledge for more than ninety days that the loss of hearing is or was due to the nature of the employment shall have six months from such date to file a claim.” Having adopted the language that it did and thus gone beyond what the waiting provision reduction necessitated, the Legislature must be held to have intended what the clear import of the words it used conveyed — that a six-month grace period was granted to any employee whose disablement and knowledge of disablement occurred prior to October 1, 1980, no matter how long prior to that date. “[W]e must assume that the Legislature did not deliberately place a phrase in the statute which was intended to serve no purpose” (Matter of Smathers, 309 NY 487, 495; McKinney’s Cons Laws of NY, Book 1, Statutes, § 98, subd a, p 223). Moreover, the 1980 amendment having been enacted on the recommendation of the Workers’ Compensation Board, as the memoranda of the Board and of the sponsor contained in the Governor’s Bill Jacket show, the Board in construing and applying the statute was boiind to effectuate the purpose of the Legislature as thus declared (Matter of Mulligan v Murphy, 14 NY2d 223, 226; Matter of Hotel Assn. v Weaver, 3 NY2d 206, 211).

The conception of the majority (majority opn, at pp 154-155) and of the Appellate Division (95 AD2d 118, 119, n) that there are several hundred other claims and that retroactive application would, therefore, be unfair to employers is bottomed upon nothing more in the record that the statement of Bethlehem’s attorney to the Board panel who heard the appeal that “there are many many cases that involve this very issue that are awaiting decision in one step or another.” We have not normally accepted such argument as fact. Nor is there support in the record for the argument now made before us, though not to the Board panel, that employers may be prejudiced by not having preserved evidence for longer than 30 months after an employee’s date of retirement. The argument is, in any event, irrelevant in light of the alternative “90-day knowledge” limitation provision, in view of which records could not under the prior law safely be destroyed after 30 months, or at any fixed time. The present situation is thus clearly distinguishable from that of Matter of Beary v City of Rye (44 NY2d 398, 413), on which the majority rely, and which emphasized the absence of prior reason to gather and preserve evidence.

As a further reason for the conclusion it reached, the Appellate Division suggested that to construe the amendment otherwise would put in doubt its constitutionality. But section 18 of article I of the State Constitution (“Nothing contained in this constitution shall be construed to limit the power of the legislature to enact laws * * * for the payment * * * of compensation for injuries to employees”) is a complete answer to that suggestion insofar as it rests on the State Constitution (Koutrakos v Long Is. Coll. Hosp., 39 NY2d 1026, affg on opn below 47 AD2d 500, 505-506; Matter of Schmidt v Wolf Contr. Co., 295 NY 748, affg without opn 269 App Div 201, 207; Barrencotto v Cocker Saw Co., 266 NY 139,143). No more of a problem is the due process clause of the Fourteenth Amendment to the Federal Constitution for it is now well settled that the Legislature may constitutionally revive a claim barred by limitations except when the effect of the lapse of time has been to invest the holder of property with title to it (Chase Securities Corp. v Donaldson, 325 US 304; Campbell v Holt, 115 US 620; Gallewski v Hentz & Co., 301 NY 164; Robinson v Robins Dry Dock & Repair Co., 238 NY 271, app dsmd 271 US 649; Barrett v Wojtowicz, 66 AD2d 604; Matter of Strang, 117 App Div 796; see Electrical Workers v Robbins & Myers, 429 US 229; House v Carr, 185 NY 453), or when a judgment, having become final and unalterable because there was no further right of appeal, conferred a vested right and thus constituted property of which the owner could not be deprived by the retroactive grant of a right of appeal (Matter of Chrysler Props, v Morris, 23 NY2d 515, 519). Unlike a judgment, however, the running of a Statute of Limitations creates no such vested or property right. To the contrary, although it bars a remedy on the claim so long as it remains effective, it does not destroy the right or foreclose a change in the legislative policy which resulted in imposition of the bar (Chase Securities Corp. v Donald son, 325 US, at p 314; House v Carr, 185 NY 453, 458, supra; Hulbert v Clark, 128 NY 295, 297-298; Matter of Wood v Queen City Neon Sign Co., 282 App Div 106, 111, mot for lv to app den 306 NY 979).

Finally, Matter of McCann v Walsh Constr. Co. (306 NY 904); Robinson v Robins Dry Dock & Repair Co. (238 NY 271, supra) and Matter of Mlodozeniec v Worthington Corp. (9 AD2d 21, affd without opn 8 NY2d 918, cert den 364 US 628), all applied limitations provisions of the Compensation Law retroactively, and in Matter ofMcGoldrick v New York Post (20 AD2d 595), upon which Bethlehem relies as a contrary decision, the Appellate Division noted that the amendment there involved did not grant employees any extension of time for enforcement of their rights.

There being neither constitutional inhibition nor basis in the rules of construction for refusing to apply the 1980 amendment as did the Workers’ Compensation Board, the order of the Appellate Division should be reversed and the decision of the Board reinstated.

Judges Jones, Wachtler and Simons concur with Judge Kaye; Judge Meyer dissents and votes to reverse in a separate opinion in which Chief Judge Cooke and Judge Jasen concur.

Order affirmed, with costs. 
      
      . Supporting a conclusion that the language of the provision is not free of ambiguity is the fact that another Board panel in another case, Reinhardt v Buffalo Sheet Metals 
        Workers’ Compensation Bd., applied the same statute to similar facts, and unanimously reached the opposite result.
     
      
      . Contrary to the view of the dissent (at p 157), the date of discovery exception was made applicable to occupational hearing losses by the 1980 amendment to section 49-bb. While sections 28 and 40 of the Workers’ Compensation Law each previously contained date of discovery limitations periods, these were by their terms limited to certain diseases and occurrences, not including occupational hearing losses generally. (See Memorandum of Sponsor, Governor’s Bill Jacket, L 1980, ch 324; see, also, Minkowitz, Practice Commentary, McKinney’s Cons Laws of NY, Book 64, Workers’ Compensation Law, § 49-bb, 1983-1984 Pocket Part, p 247.) On this appeal, appellant Workers’ Compensation Board explicitly recognizes the inapplicability of the 90-day provision to occupational hearing losses before the 1980 amendment.
     
      
      . That the sponsor’s memorandum referred to in the majority’s footnote 2 indicates that he was unaware that section 49-ee gave a right to file a claim within 90 days after knowledge of an occupationally related loss of hearing cannot change the fact that the Legislature had earlier so provided (see People v Graham, 55 NY2d 144, 151; People v Whidden, 51 NY2d 457, 462). Of interest in that connection is the fact that the memorandum of the Workers’ Compensation Board in the same Bill Jacket makes no reference to the 90-day provision. Nor, of course, can the Practice Commentary change what section 49-ee provided (see Matter of Lorie C., 49 NY2d 161, 169).
     
      
      . By chapter 659 of the Laws of 1984, effective January 1,1985 but applicable only to disablement or death occurring on or after that date, section 40 is repealed and the 90-day period of section 28 is enlarged to two years and made to run from when “the claimant knew or should have known” that his disability was due to the nature of his employment.
     