Opinion
535046
02-16-2023
In the Matter of the Claim of Gheorghe PETRE, Appellant, v. ALLIED DEVICES CORP. et al., Respondents. Workers’ Compensation Board, Respondent.
Gheorghe Petre, Bronx, appellant pro se. Foley, Smit, O'Boyle & Weisman, Hauppauge (Jennifer K. Arcarola of counsel), for Allied Devices Corp. and another, respondents.
Gheorghe Petre, Bronx, appellant pro se.
Foley, Smit, O'Boyle & Weisman, Hauppauge (Jennifer K. Arcarola of counsel), for Allied Devices Corp. and another, respondents.
Before: Egan Jr., J.P., Clark, Pritzker, Ceresia and Fisher, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.P.
Appeal from a decision of the Workers’ Compensation Board, filed March 4, 2022, which denied claimant's application for reconsideration and/or full Board review.
In 1999, claimant sustained work-related injuries, and his ensuing claim for workers’ compensation benefits was established for injuries involving the back, neck, gastritis, cervico-genic vertigo, dystemia, cervical headaches and a consequential psychiatric disorder. Following an August 2021 hearing, a Workers’ Compensation Law Judge (hereinafter WCLJ), among other things, amended the claim to include right lumbosacral neuritis involving the right side and foot, directed claimant's doctor to request prior authorization for Gabapentin using the version of the Drug Formulary rules in effect at that time (see Workers’ Compensation Board, Drug Formulary at 1, 5 [Apr. 1, 2020]), and further directed claimant to submit missing documentation in support of his request for reimbursement of medical and travel expenses. Upon administrative review, the Workers’ Compensation Board affirmed. The Board also denied claimant's subsequent application for reconsideration and/or full Board review in a March 2022 decision, from which claimant now appeals.
We affirm. Initially, inasmuch as "claimant has appealed only from the decision addressing [his] application for reconsideration and/or full Board review, our review ‘is limited to whether the Board abused its discretion or acted in an arbitrary and capricious manner’ in denying that application" ( Matter of Gorbea v. Verizon N.Y. Inc., 199 A.D.3d 1253, 1253–1254, 159 N.Y.S.3d 179 [3d Dept. 2021], quoting Matter of Petre v. Allied Devices Corp., 191 A.D.3d 1086, 1088, 141 N.Y.S.3d 536 [3d Dept. 2021], lv dismissed 37 N.Y.3d 938, 147 N.Y.S.3d 578, 170 N.E.3d 453 [2021] ). To satisfy that standard, claimant "was required to demonstrate that newly discovered evidence existed, that there had 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 Moore v. U.S. Xpress, Inc., 201 A.D.3d 1083, 1085, 160 N.Y.S.3d 451 [3d Dept. 2022] [internal quotation marks and citations omitted], lv denied 38 N.Y.3d 1029, 169 N.Y.S.3d 248, 189 N.E.3d 355 [2022] ; see Matter of Singletary v. Schiavone Constr. Co., 174 A.D.3d 1240, 1242, 104 N.Y.S.3d 435 [3d Dept. 2019] ; Matter of D'Errico v. New York City Dept. of Corrections, 65 A.D.3d 795, 796, 883 N.Y.S.2d 828 [3d Dept. 2009], appeal dismissed 13 N.Y.3d 899, 895 N.Y.S.2d 288, 922 N.E.2d 874 [2009] ).
Upon reviewing the record before us, we find that claimant's application for reconsideration and/or full Board review failed to allege a material change in condition or set forth any newly discovered evidence that would warrant granting his request. Further, the record reflects that the Board, in the underlying December 2021 decision, considered the issues that were before it, including claimant's request for reimbursement of certain medical and travel expenses and his argument that the Drug Formulary does not apply to Gabapentin, a second-line prescription medication (see Workers’ Compensation Board, Drug Formulary at 1, 5 [Apr. 1, 2020]; see also 12 NYCRR 441.3 [a][1]; 441.4[c]; 441.5[a][2]). Accordingly, we discern no abuse of discretion by the Board in denying claimant's request for reconsideration and/or full Board review (see Matter of Banish v. Warren County Sheriff's Off., 209 A.D.3d 1081, 1084, 175 N.Y.S.3d 764 [3d Dept. 2022] ; Matter of Bidot v. Suffolk County Probation Dept., 205 A.D.3d 1280, 1281, 169 N.Y.S.3d 713 [3d Dept. 2022] ). Claimant's remaining contentions, to the extent not explicitly addressed, have been reviewed and found to be without merit.
Clark, Pritzker, Ceresia and Fisher, JJ., concur.
ORDERED that the decision is affirmed, without costs.