Opinion
523096
03-22-2018
In the Matter of the Claim of David Brian BRASHER, Appellant, v. SAM DELL'S DODGE CORPORATION, et al., Respondents. Workers' Compensation Board, Respondent. (And Another Related Claim.)
David Brian Brasher, Pulaski, appellant pro se. Wolff, Goodrich & Goldman, LLP, Syracuse (Robert E. Geyer Jr. of counsel), for Sam Dell's Dodge Corporation, respondent. William O'Brien, State Insurance Fund, Liverpool (Susan B. Marris of counsel), for State Insurance Fund, respondent.
David Brian Brasher, Pulaski, appellant pro se.
Wolff, Goodrich & Goldman, LLP, Syracuse (Robert E. Geyer Jr. of counsel), for Sam Dell's Dodge Corporation, respondent.
William O'Brien, State Insurance Fund, Liverpool (Susan B. Marris of counsel), for State Insurance Fund, respondent.
Before: McCarthy, J.P., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Lynch, J.Appeal from a decision of the Workers' Compensation Board, filed April 22, 2016, which denied claimant's application for reconsideration and/or full Board review.
Claimant established two separate claims for workers' compensation benefits for injuries suffered in 1986 and 2002. In 2015, a Workers' Compensation Law Judge determined that claimant had a 75% permanent partial disability, but suspended awards based upon a finding that he was not attached to the labor market. By a decision filed on January 21, 2016, the Workers' Compensation Board affirmed, and claimant applied for reconsideration and/or full Board review. The application was denied by the Board in a decision filed April 22, 2016, and claimant now appeals.
Inasmuch as claimant has only appealed from the Board's April 2016 decision denying his application for reconsideration and/or full Board review, the merits of the underlying decision are not before us (see Matter of Onuoha v. BJs Club 165 , 139 A.D.3d 1274, 1275, 31 N.Y.S.3d 679 [2016] ; Matter of Ali v. Liberty Lines Tr. , 131 A.D.3d 1288, 1289, 15 N.Y.S.3d 897 [2015] ). Therefore, our inquiry is limited to whether the Board's denial of claimant's application was arbitrary or capricious or otherwise constituted an abuse of discretion (see Matter of Cozzi v. American Stock Exch. , 148 A.D.3d 1500, 1501, 49 N.Y.S.3d 316 [2017], lv dismissed 30 N.Y.3d 937, 63 N.Y.S.3d 744, 85 N.E.3d 1018 [2017] ; Matter of Sheng v. Time Warner Cable, Inc. , 131 A.D.3d 1283, 1284, 16 N.Y.S.3d 92 [2015], lv dismissed 26 N.Y.3d 1060, 22 N.Y.S.3d 416, 43 N.E.3d 774 [2015] ). In that regard, claimant has not shown "that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination" ( Matter of D'Errico v. New York City Dept. of Corrections , 65 A.D.3d 795, 796, 883 N.Y.S.2d 828 [2009], appeal dismissed 13 N.Y.3d 899, 895 N.Y.S.2d 288, 922 N.E.2d 874 [2009] ; accord Matter of Amaker v. City of N.Y. Dept. of Transp. , 144 A.D.3d 1342, 1343, 40 N.Y.S.3d 802 [2016] ). To the contrary, claimant maintained that he was totally disabled because he could not fill out applications and should not have to be attached to the labor market, a contention inconsistent with the findings of his own physicians that he had a 75% permanent partial disability. Accordingly, we cannot conclude that the Board acted in an arbitrary or capricious manner or abused its discretion in denying claimant's application.
ORDERED that the decision is affirmed, without costs.
McCarthy, J.P., Clark, Aarons and Pritzker, JJ., concur.