Claim of Forbes v. American Airlines

Dec 30, 2004
Versions:13 A.D.3d 1001
786 N.Y.S.2d 371
2004 N.Y. App. Div. LEXIS 16186
Rose, J.

Appeal from a decision of the Workers’ Compensation Board, filed April 21, 2003, which denied claimant’s application for reconsideration and/or full Board review of a prior decision ruling that claimant had no further causally related disability after November 5, 1998.

Claimant injured his neck in the course of his employment as a baggage handler in December 1996 and was awarded workers’ compensation benefits. Subsequently, the employer and its workers’ compensation carrier controverted the claim. Following several telephone depositions, a Workers’ Compensation Law Judge found that, based on the credible medical evidence, claimant had no further causally related disability after November 5, 1998. By decision filed December 31, 2002, the Workers’ Compensation Board affirmed the Workers’ Compensation Law Judge’s findings and closed the case. Thereafter, claimant sought reconsideration and/or full Board review of this decision. The application was denied and this appeal by claimant ensued.

Inasmuch as claimant is appealing only from the Board’s denial of his application for reconsideration and/or full Board review, the merits of the Board’s December 2002 decision are not before this Court (see Matter of Rakowski v State Ins. Fund, 10 AD3d 817, 817-818 [2004]; Matter of Ostuni v Town of Ramapo, 8 AD3d 915, 916 [2004]). Instead, our review is limited to determining whether the denial of claimant’s application for reconsideration and/or full Board review “was arbitrary or capricious or an abuse of discretion” (Matter of Rakowski v State Ins. Fund, supra at 817-818). Based on our review of the record, we are satisfied that the Board fully considered all the evidence before it on the issue of whether claimant suffered a further causally related disability after November 5, 1998 and claimant presented no new evidence to supplement the record. In any event, were we to reach the merits of the Board’s December 2002 decision, we would find it to be supported by substantial evidence.

Cardona, P.J., Crew III, Peters and Carpinello, JJ., concur. Ordered that the decision is affirmed, without costs.