Capalbo v. Stone & Webster Constr. Servs.

• Decision Date: 26 January 2012
• Citation: 2012 N.Y. Slip Op. 00457,91 A.D.3d 1263,936 N.Y.S.2d 795
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of the Claim of Joseph CAPALBO, Respondent, v. STONE & WEBSTER CONSTRUCTION SERVICES et al., Appellants.Workers' Compensation Board, Respondent.

2012 N.Y. Slip Op. 00457

91 A.D.3d 1263

936 N.Y.S.2d 795

In the Matter of the Claim of Joseph CAPALBO, Respondent,

v.STONE & WEBSTER CONSTRUCTION SERVICES et al., Appellants.Workers' Compensation Board, Respondent.

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

Jan. 26, 2012.

Morrison Mahoney, L.L.P., New York City (Kimberly N. Coleman of counsel), for appellants.

Law Office of Joseph A. Romano, New York City (Joseph A. Romano of counsel), for Joseph Capalbo, respondent.

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

Before: PETERS, J.P., MALONE JR., STEIN, GARRY and EGAN JR., JJ.

GARRY, J.

Appeal from a decision of the Workers' Compensation Board, filed November 16, 2010, which denied the request of the employer and its workers' compensation carrier for reconsideration or full Board review.

Decedent was employed as a steamfitter at the Indian Point nuclear power plant until September 2007, when he passed away from lymphoma. Claimant, decedent's wife, filed a claim in August 2009 for workers' compensation death benefits, asserting that decedent's lymphoma was the result of his exposure to radioactive agents during his employment. Following a hearing in November 2009, a Workers' Compensation Law Judge found prima facie medical evidence that the death was compensable and ordered that if the employer and its workers' compensation carrier (hereinafter collectively referred to as the carrier) wished to submit an independent medical examination report contesting causality, such report must be submitted within 45 days. At a hearing in February 2010, the Workers' Compensation Law Judge extended the carrier's time for submitting the report. Claimant appealed and, in July 2010, the Workers' Compensation Board reversed, finding that the carrier had waived its opportunity to produce such a report, having failed to do so in the time originally prescribed. The Board further found that the carrier waived its opportunity to cross-examine claimant's medical expert, having failed to make such a request. The carrier's subsequent application for reconsideration or full Board review was denied and this appeal ensued.

We affirm. The merits of the Board's July 2010 decision are not properly before this Court, as the carrier failed to appeal that decision and appealed only from the Board's denial of its request for full Board review and/ or reconsideration ( see Matter of Dipippo v. Accurate Signs & Awnings, 88 A.D.3d 1044, 1045, 930 N.Y.S.2d 100 [2011]; Matter of Maqsood v. McRoberts Protective Agency, 79 A.D.3d 1547, 1547, 914 N.Y.S.2d 351 [2010], lv. dismissed 16 N.Y.3d 871, ...