Opinion
518653.
09-03-2015
In the Matter of the Claim of YUJUAN SHENG, Appellant, v. TIME WARNER CABLE, INC., et al., Respondents. Workers' Compensation Board, Respondent.
Yujuan Sheng, Briarwood, appellant pro se. Foley, Smit, O'Boyle & Weisman, Hauppauge (Theresa E. Wolinski of counsel), for Time Warner Cable, Inc. and another, respondents.
Yujuan Sheng, Briarwood, appellant pro se.
Foley, Smit, O'Boyle & Weisman, Hauppauge (Theresa E. Wolinski of counsel), for Time Warner Cable, Inc. and another, respondents.
Before: LAHTINEN, J.P., McCARTHY, GARRY and EGAN JR., JJ.
Opinion
McCARTHY, J.Appeal from a decision of the Workers' Compensation Board, filed February 28, 2014, which denied claimant's application for reconsideration and/or full Board review.
Claimant sustained work-related injuries to her back and left hip in 2005 and was awarded workers' compensation benefits. Benefit payments stopped in 2007 when claimant returned to work. Her employment apparently ended in April 2008 and she subsequently raised the issues of permanency and reduced wages. A Workers' Compensation Law Judge (hereinafter WCLJ) awarded claimant additional benefits from April 11, 2008 to October 29, 2008, but found no further compensable lost time. By a decision filed September 25, 2013, the Workers' Compensation Board affirmed, and claimant applied for reconsideration and/or full Board review. That request was denied by the Board in a February 2014 decision, and claimant now appeals to this Court.
Inasmuch as claimant has appealed only from the Board's February 2014 decision denying her application for reconsideration and/or full Board review, the merits of the underlying decision are not before us (see Matter of Mazzaferro v. Fast Track Structures, Inc., 106 A.D.3d 1302, 1302, 964 N.Y.S.2d 917 [2013] ; Matter of McCorkle–Spaulding v. Lowe's, 95 A.D.3d 1513, 1514, 945 N.Y.S.2d 430 [2012] ). Accordingly, our inquiry is limited to whether the Board's denial of the application was arbitrary or capricious or otherwise constituted an abuse of discretion (see Matter of Pucci v. DCH Auto Group, 90 A.D.3d 1255, 1256, 935 N.Y.S.2d 174 [2011] ; 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] ). Here, claimant challenges the WCLJ's factual findings and contends that she should have been found to have a permanent disability. Further, she argues that she did not receive a fair hearing, claiming that the WCLJ should have taken her testimony prior to rendering a decision. Claimant's remedy regarding these issues was to appeal the Board's September 2013 decision, which she failed to do. Under these circumstances, we cannot say that the Board's denial of claimant's application was arbitrary or capricious or an abuse of its discretion (see Matter of Barber v. New York City Tr. Auth., 50 A.D.3d 1402, 1403, 857 N.Y.S.2d 285 [2008] ; Matter of Robinson v. Interstate Natl. Dealer, 50 A.D.3d 1325, 1326, 856 N.Y.S.2d 694 [2008] ).
ORDERED that the decision is affirmed, without costs.
LAHTINEN, J.P., GARRY and EGAN JR., JJ., concur.