Ali v. Liberty Lines Transit

• Decision Date: 03 September 2015
• Citation: 2015 N.Y. Slip Op. 06742,15 N.Y.S.3d 897,131 A.D.3d 1288
• Parties: In the Matter of the Claim of Liaqat ALI, Respondent, v. LIBERTY LINES TRANSIT et al., Appellants. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 1288
15 N.Y.S.3d 897
2015 N.Y. Slip Op. 06742

In the Matter of the Claim of Liaqat ALI, Respondent,
v.
LIBERTY LINES TRANSIT et al., Appellants.
Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Sept. 3, 2015.

Vecchione Vecchione & Connors, Garden City Park (Sean Dooley of counsel), for appellants.

Eric T. Schneiderman, Attorney General, New York City (Marjorie S. Leff of counsel), for Workers' Compensation Board, respondent.

Before: LAHTINEN, J.P., McCARTHY, GARRY and EGAN JR., JJ.

EGAN JR., J.

Appeal from a decision of the Workers' Compensation Board, filed December 24, 2013, which denied the application of the employer and its workers' compensation carrier for reconsideration and/or full Board review.

Claimant, a bus driver, filed a claim for workers' compensation benefits stating that he had suffered a stroke while working. Following a hearing, a Workers' Compensation Law Judge determined that there was a causal relationship between claimant's stroke and his employment and established the claim. That determination was upheld by the Workers' Compensation Board in a decision filed July 1, 2013. The employer and its workers' compensation carrier (hereinafter collectively referred to as the employer) thereafter applied for reconsideration and/or full Board review. The Board denied the application in a decision filed on December 24, 2013. The employer now appeals.

We affirm. Inasmuch as the employer has only appealed from the Board's December 2013 decision denying its application for reconsideration and/or full Board review, the merits of the underlying July 2013 decision are not before us ( see Matter of Kalkbrenner v. Accord Corp., 123 A.D.3d 1303, 1304, 998 N.Y.S.2d 533 [2014]; Matter of Barone v. Interstate Maintenance Corp., 73 A.D.3d 1302, 1302–1303, 900 N.Y.S.2d 511 [2010] ). Therefore, our inquiry is limited to whether the Board's denial of the employer's application was arbitrary or capricious or otherwise constituted an abuse of discretion ( see Matter of Mazzaferro v. Fast Track Structures, Inc., 106 A.D.3d 1302, 1302, 964 N.Y.S.2d 917 [2013];

[15 N.Y.S.3d 898]

Matter of Dipippo v. Accurate Signs & Awnings, 88 A.D.3d 1044, 1045, 930 N.Y.S.2d 100 [2011] ). Here, the employer has failed to “show that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review...