Opinion
2012-04-12
In the Matter of the Claim of Robert FETTER, Respondent, v. VERIZON, Appellant.Workers' Compensation Board, Respondent.
White & Williams, L.L.P., Pleasantville (Scott H. Casher of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel of counsel), for Workers' Compensation Board, respondent.
White & Williams, L.L.P., Pleasantville (Scott H. Casher of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel of counsel), for Workers' Compensation Board, respondent.
Before: PETERS, P.J., ROSE, KAVANAGH, GARRY and EGAN JR., JJ.
EGAN JR., J.
Appeal from a decision of the Workers' Compensation Board, filed April 12, 2011, which rescinded a decision of the Workers' Compensation Law Judge and restored the case to the trial calendar for further development of the record.
After claimant sustained work-related injuries in a fall from a utility pole, the employer issued a “Step 1” warning to claimant and directed that he attend a safety compliance program. In response, claimant filed a discrimination complaint against the employer alleging that it violated Workers' Compensation Law § 120 by disciplining him following a work-related accident. A Workers' Compensation Law Judge (hereinafter WCLJ) summarily disposed of the matter and marked the case as “no further action.” The Workers' Compensation Board subsequently rescinded the WCLJ's decision, finding—insofar as is relevant here—that the WCLJ failed to render “a reasoned oral or written decision upon the contested points” as required by 12 NYCRR 300.5(a) and restored the matter to the trial calendar for further development of the record. This appeal by the employer ensued.
Inasmuch as the Board's decision is interlocutory in nature and neither disposes of all the substantive legal issues nor addresses a threshold legal issue that may be dispositive of the underlying claim, it is not the proper subject of an appeal ( see Matter of Dow v. Silver Constr. Corp., 83 A.D.3d 1270, 1270, 921 N.Y.S.2d 912 [2011]; Matter of McClam v. American Axle & Mfg., 79 A.D.3d 1315, 1316, 911 N.Y.S.2d 685 [2010]; Matter of Carlineo v. Snelling & Snelling, LLC, 73 A.D.3d 1247, 1248, 899 N.Y.S.2d 489 [2010]; Matter of Rivers v. Blue Ridge Farms, Inc., 36 A.D.3d 1132, 1133, 829 N.Y.S.2d 245 [2007] ). As we previously have observed, “piecemeal review of issues in workers' compensation cases should be avoided” ( Matter of Sawyer v. Orange Motors, 24 A.D.3d 1117, 1117–1118, 807 N.Y.S.2d 668 [2005]; accord Matter of Ortiz v. Martin Viette Nurseries, Inc., 82 A.D.3d 1480, 1480, 918 N.Y.S.2d 759 [2011]; Matter of Ogbuagu v. Ngbadi, 61 A.D.3d 1198, 1199, 876 N.Y.S.2d 769 [2009]; Matter of Wilson v. Roselli Moving & Stor. Corp., 37 A.D.3d 959, 959, 829 N.Y.S.2d 742 [2007] ). As the nonfinal decision now before us is reviewable upon an appeal from the Board's final determination, this appeal must be dismissed ( see Matter of Dow v. Silver Constr. Corp., 83 A.D.3d at 1271, 921 N.Y.S.2d 912; Matter of Ortiz v. Martin Viette Nurseries, Inc., 82 A.D.3d at 1480–1481, 918 N.Y.S.2d 759).
ORDERED that the appeal is dismissed, without costs.