Opinion
87974
December 13, 2001.
Appeal from a decision of the Workers' Compensation Board, filed August 29, 2000, which denied the application of the workers' compensation carrier for full Board review of a decision directing it to continue paying claimant workers' compensation benefits at a temporary total disability rate pending full development of the record.
Sullivan, Cunningham Keenan (John M. Oliver of counsel), Albany, for appellant.
Buckley, Mendleson Criscione (Brendan G. Quinn of counsel), Albany, for William Bush, respondent.
Eliot Spitzer, Attorney-General (Iris A. Steel of counsel), New York City, for Workers' Compensation Board, respondent.
Before: Mercure, J.P., Peters, Spain, Carpinello and Rose, JJ.
MEMORANDUM AND ORDER
During the course of his employment as a construction worker for the employer, claimant injured his back on June 24, 1994 and again on July 27, 1994; he sought medical treatment and eventually underwent surgery. In response to a claim made after the July 27, 1994 event, the employer's workers' compensation carrier commenced paying claimant $400 a week without waiting for an award of workers' compensation benefits. Following a hearing in February 1998, a Workers' Compensation Law Judge issued a decision finding accident, notice and casual relationship, and awarded claimant benefits at a temporary total disability rate of $400 a week for lost time through February 10, 1998 and ordered the carrier to continue payments at that rate. The Workers' Compensation Board affirmed the temporary benefit award, denying the carrier's requests to reduce payments from a temporary total disability rate to a temporary marked partial rate and to apportion the rate to reflect only that portion of claimant's injury related to the July 27, 1994 incident. However, the Board continued the case for further development of the record on the issues of degree of disability, permanency and apportionment. The carrier's subsequent application for full Board review was denied and the carrier now appeals.
"Appeals from Board decisions which neither decide all substantive issues nor involve a threshold legal issue are not permitted * * *" (Matter of Taylor v. Gold Son, 105 A.D.2d 494, 494 [citation omitted]). Here, the carrier challenges the degree of claimant's disability and apportionment, the very issues on which the Board withheld final resolution pending further development of the record. As the Board's direction to continue payments pending full development of the record on those issues was interlocutory and did not involve a threshold legal issue, it is not appealable (see, Matter of Walker v. Low Son, 154 A.D.2d 853, 854 [holding Board's direction to pay award pending final resolution of the issues of compensability and apportionment nonappealable]; see also, Matter of Harris v. Grey Adv., 180 A.D.2d 879, 880; Matter of Donovan v. Knickerbocker Warehousing Corp., 72 A.D.2d 870;Matter of Harris v. Carborundum Co., 72 A.D.2d 869; cf.,Matter of Byrne v. Fall Fitting, 266 A.D.2d 684, 684-685).
Mercure, J.P., Peters, Carpinello and Rose, JJ., concur.
ORDERED that the appeal is dismissed, without costs.