Dukes v. Capitol Formation Inc.

• Decision Date: 02 March 1995
• Citation: 623 N.Y.S.2d 364,213 A.D.2d 756
• Parties: In the Matter of the Claim of Walter DUKES Jr., Appellant, v. CAPITOL FORMATION INC. et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 364

623 N.Y.S.2d 364

213 A.D.2d 756

In the Matter of the Claim of Walter DUKES Jr., Appellant, v. CAPITOL FORMATION INC. et al., Respondents Workers' Compensation Board, Respondent.

Supreme Court, Appellate Division,

Third Department.

March 2, 1995.

Walter L. Dukes Jr., in pro. per.

Jones, Jones, Gluck & Larkin (Joel M. Gluck, of counsel), New York City, for Capitol Formation Inc., respondent.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and SPAIN, JJ.

CREW, Justice.

Appeals (1) from a decision of the Workers' Compensation Board, filed June 7, 1993, which denied claimant's application to set aside a stipulated settlement, and (2) from a decision of said board, filed August 19, 1993, which, inter alia, denied claimant's application for reconsideration.

Claimant was injured in an automobile accident on November 9, 1971 while on a business trip for his employer. Claimant was found to have sustained a compensable injury and medical treatment, including surgery and hospitalization, was authorized. Thereafter, claimant contended, inter alia, that the workers' compensation carrier was not paying his medical bills and, over the next 20 years, numerous hearings were held on this and related compensation issues. The parties ultimately entered into a stipulated settlement, which was incorporated into a decision made by a Workers' Compensation Law Judge (hereinafter WCLJ), whereby claimant, inter alia, accepted a $75,000 lump-sum settlement under Workers' Compensation Law § 15(5-b). The WCLJ thereafter denied claimant's application to set aside the stipulation and the Workers' Compensation Board affirmed that decision. Claimant then applied for reconsideration or reopening of his claim and the Board, treating the application as one for full Board review, denied claimant's request. These appeals by claimant followed.

Initially, we note that claimant's appeal from the Board's June 7, 1993 decision affirming the WCLJ's denial of claimant's application to set aside the stipulation is untimely. The record indicates that claimant had notice of the Board's decision no later than June 18, 1993, and claimant had 30 days from that date to file his notice of appeal (see, Workers' Compensation Law § 23; Matter of Roscoe v. New York Tel. Co., 125 A.D.2d 881, 882, 510 N.Y.S.2d 235). In this regard, it is well settled that "a request for full Board review does not toll the statutory time period within which to file an appeal" (Matter of Kuk v. General Elec. Co., 147 A.D.2d 813, 537 N.Y.S.2d 902, lv. dismissed, lv. denied 74 N.Y.2d 758, 545 N.Y.S.2d 98, 543 N.E.2d 741; see, Matter of Roscoe v. New York Tel. Co., supra ), and an appeal from a denial of a request for reconsideration does not bring up for review the merits of the underlying decision (see generally, Matter of Ziskind v. Green Thumb Spray Corp., 207 A.D.2d 933, 616 N.Y.S.2d 265; Matter of Pressler v. Maner Mfg., 72 A.D.2d 629, 421 N.Y.S.2d 152, lv. denied, lv. dismissed 49 N.Y.2d 709, 1044, 429 N.Y.S.2d 1026, 407 N.E.2d 482). Accordingly, claimant's notice of appeal filed in September 1993 is untimely as to the June 7, 1993 decision. Moreover, even assuming the Board's June 7, 1993 decision was properly before us, we would conclude, for the reasons that follow, that claimant's application to set aside the stipulation was properly denied.

Turning to the Board's August 19, 1993 decision, we note that when reviewing the denial of a request for a rehearing (see, Matter of Clarke v. Rockland County, 194 A.D.2d 1017, 599 N.Y.S.2d 663), reconsideration (see, Matter of Garafolo v. Arms Hills Supermarkets, 87 A.D.2d 937, 450 N.Y.S.2d 73) or full Board review where, as here, there has been no dissent from the Board panel decision (see, Matter of Compton v. Kenlu Cab Co., 147 A.D.2d 825, 537 N.Y.S.2d 914), our inquiry is limited to whether the...