Opinion
526922
01-02-2020
In the Matter of the Claim of Michele A. TEABOUT, Appellant, v. ALBANY COUNTY SHERIFF'S DEPARTMENT et al., Respondents. Workers' Compensation Board, Respondent.
Law Firm of Alex Dell, PLLC, Albany (Nicholas A. Fusco of counsel), for appellant. Walsh & Hacker, Albany (Peter J. Walsh of counsel), for Albany County Sheriff's Department and another, respondents.
Law Firm of Alex Dell, PLLC, Albany (Nicholas A. Fusco of counsel), for appellant.
Walsh & Hacker, Albany (Peter J. Walsh of counsel), for Albany County Sheriff's Department and another, respondents.
Before: Egan Jr., J.P., Clark, Devine and Aarons, JJ.
MEMORANDUM AND ORDER
Aarons, J.
Appeal from a decision of the Workers' Compensation Board, filed December 14, 2017, which denied claimant's request for reconsideration and/or full Board review.
In 1997, claimant sustained a work-related injury to her foot and a claim for workers' compensation benefits was established. The claim was subsequently amended twice to include other injuries. The self-insured employer thereafter raised the issue of whether claimant violated Workers' Compensation Law § 114–a and, following a hearing, a Workers' Compensation Law Judge found that claimant violated the statute. A penalty of a rescission of awards, as well as a disqualification of future awards, was imposed. In a September 2017 decision, a panel of the Workers' Compensation Board upheld the Workers' Compensation Law Judge's determination. Claimant submitted an application for reconsideration and/or full Board review. In a December 2017 decision, the Board denied the application. Claimant appeals. We affirm.
Initially, we note that claimant has appealed solely from the December 2017 decision denying her application for reconsideration and/or full Board review. As a consequence, our review 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 Singletary v. Schiavone Constr. Co., 174 A.D.3d 1240, 1242, 104 N.Y.S.3d 435 [2019] ; Matter of Oparaji v. Books & Rattles, 168 A.D.3d 1209, 1209, 89 N.Y.S.3d 924 [2019] ; Matter of Ali v. Liberty Lines Tr., 131 A.D.3d 1288, 1289, 15 N.Y.S.3d 897 [2015] ). On appeal, claimant directs her arguments towards her perceived errors with the Board's September 2017 decision. The merits of that decision, however, are not properly before us (see Matter of Duncan v. Crucible Metals, 165 A.D.3d 1377, 1378, 85 N.Y.S.3d 252 [2018] ; 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] ). Because the record discloses no new evidence that was previously unavailable, no material change in condition or any failure by the Board to consider the relevant evidence in reaching its ultimate decision, we find that the denial of claimant's application for reconsideration and/or full Board review was not arbitrary, capricious or an abuse of discretion (see Matter of Seck v. Quick Trak, 158 A.D.3d 919, 921, 71 N.Y.S.3d 649 [2018] ; Matter of Bland v. Gellman, Brydges & Schroff, 151 A.D.3d 1484, 1489, 58 N.Y.S.3d 225 [2017], lv dismissed and denied 30 N.Y.3d 1035, 69 N.Y.S.3d 233, 91 N.E.3d 1212 [2017], cert denied ––– U.S. ––––, 139 S.Ct. 240, 202 L.Ed.2d 161 [2018] ; Matter of Amaker v. City of N.Y. Dept. of Transp., 144 A.D.3d 1342, 1343, 40 N.Y.S.3d 802 [2016] ).
ORDERED that the decision is affirmed, without costs.
Egan Jr., J.P., Clark and Devine, JJ., concur.