Opinion
October 25, 1990
Appeal from the Workers' Compensation Board.
The testimony of Dr. David Smith that all of the objective measures of claimant's visual performance showed her vision to be normal provided substantial evidence for the finding of the Workers' Compensation Board that claimant suffered no loss of visual acuity. The contrary medical evidence merely created an issue of credibility for the Board's resolution (see, Matter of Film v. Holmes Transp., 147 A.D.2d 831). Further, it is undisputed that claimant received 26 weeks of disability payments during her absence from work following her knee injury, and there is no evidence in the record to support the contention that the employer's long-term disability plan entitled claimant to further benefits. Moreover, the plan, providing benefits which claimant acknowledges are in excess of those required by State law, is regulated exclusively by the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. § 1001 et seq.; see, Shaw v. Delta Air Lines, 463 U.S. 85). Finally, the Board's decision to deny claimant's application for reconsideration of her discrimination claim was neither an abuse of discretion nor arbitrary and capricious (see, Matter of Gibbons v. Zara Constr. Co., 77 A.D.2d 675, 676, lv denied 52 N.Y.2d 705) and, therefore, may not be disturbed. The record amply supports the Board's determination that no new evidence was submitted to warrant reconsideration (see, supra).
Decisions affirmed, without costs. Mahoney, P.J., Casey, Weiss, Yesawich, Jr., and Mercure, JJ., concur.