Opinion
2012-03-22
In the Matter of the Claim of Brian A. WOODS, Appellant, v. NEW YORK STATE THRUWAY AUTHORITY et al., Respondents.Workers' Compensation Board, Respondent.
Brian A. Woods, Middletown, appellant pro se. Gregory J. Allen, State Insurance Fund, White Plains (Rudolph Rosa DiSant of counsel), for New York State Thruway Authority and another, respondents.
Brian A. Woods, Middletown, appellant pro se. Gregory J. Allen, State Insurance Fund, White Plains (Rudolph Rosa DiSant of counsel), for New York State Thruway Authority and another, respondents.
Before: MERCURE, Acting P.J., LAHTINEN, SPAIN, STEIN and McCARTHY, JJ.
STEIN, J.
Appeal from a decision of the Workers' Compensation Board, filed February 4, 2010, which denied claimant's application for reconsideration and/or full Board review.
In 1993, claimant suffered a work-related injury to his back and was awarded workers' compensation benefits. Claimant was found in violation of Workers' Compensation Law § 114–a in 2003 and the Workers' Compensation Board rescinded claimant's benefits and disqualified him from receiving future wage replacement benefits. In 2007, claimant raised the issue of a causally related injury to his neck, arising out of the 1993 incident. Ultimately, in a decision filed June 12, 2009, the Board ruled that the claim regarding the neck injury was time-barred pursuant to Workers' Compensation Law § 28. Claimant did not appeal from that decision, but subsequently applied for reconsideration and/or full Board review. The Board denied the application and claimant now appeals.
That decision was affirmed by this Court (27 A.D.3d 933, 810 N.Y.S.2d 580 [2006], lv. denied 7 N.Y.3d 716, 826 N.Y.S.2d 182, 859 N.E.2d 922 [2006] ).
We affirm. “Inasmuch as claimant has appealed from only the decision denying [his] application for reconsideration and/or full Board review, the merits of the underlying decision are not properly before us” ( Matter of Nikolaeva v. Cattaraugus County Nursing Home, 37 A.D.3d 969, 969, 828 N.Y.S.2d 923 [2007] [citations omitted]; accord Matter of Malone v. VRD Decorating, 68 A.D.3d 1570, 1570, 892 N.Y.S.2d 610 [2009], lv. dismissed 14 N.Y.3d 825, 900 N.Y.S.2d 242, 926 N.E.2d 597 [2010] ). Rather, “our review is limited to whether the Board's denial of the application was arbitrary and capricious or otherwise constituted an abuse of discretion” ( Matter of Kaja v. Siller Bros., Inc., 74 A.D.3d 1511, 1512, 902 N.Y.S.2d 232 [2010]; accord Matter of Marks v. Evergreen Country Club, 27 A.D.3d 914, 915, 810 N.Y.S.2d 601 [2006] ). Here, our review of the record reveals that the Board considered all of the evidence and issues before it and claimant did not seek to present newly discovered evidence or allege a material change in condition in support of his application for reconsideration and/or full Board review ( see Matter of Nikolaeva v. Cattaraugus County Nursing Home, 37 A.D.3d at 969, 828 N.Y.S.2d 923; Matter of Marks v. Evergreen Country Club, 27 A.D.3d at 915, 810 N.Y.S.2d 601). Accordingly, we cannot conclude that the Board's denial of the application was arbitrary and capricious or an abuse of discretion.
ORDERED that the decision is affirmed, without costs.