Eastman v. Glens Falls Hosp.

• Decision Date: 10 February 2022
• Docket Number: 532522
• Parties: In the Matter of the Claim of Stacy EASTMAN, Respondent, v. GLENS FALLS HOSPITAL et al., Appellants. Workers’ Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 1232

163 N.Y.S.3d 653

In the Matter of the Claim of Stacy EASTMAN, Respondent,

v. GLENS FALLS HOSPITAL et al., Appellants.Workers’ Compensation Board, Respondent.

532522

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

Calendar Date: January 7, 2022

Decided and Entered: February 10, 2022

Law Offices of John Wallace, Albany (Joseph W. Buttridge of counsel), for appellants.

Martin, Harding & Mazzotti, LLP, Albany (Crystle A. Watts of counsel), for Stacy Eastman, respondent.

Letitia James, Attorney General, New York City (Nina M. Sas of counsel), for Workers’ Compensation Board, respondent.

Before: Garry, P.J., Egan Jr., Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeal from a decision of the Workers’ Compensation Board, filed June 10, 2020, which denied the application of the employer and its workers’ compensation carrier for reconsideration and/or full Board review.

Claimant was injured at work and filed a claim for workers’ compensation benefits. A Workers’ Compensation Law Judge established the claim, and claimant was found to have a 10% schedule loss of use (hereinafter SLU) of her right leg. In a decision filed April 6, 2020, the Workers’ Compensation Board affirmed. Thereafter, the employer and its workers’ compensation carrier (hereinafter collectively referred to as the employer) applied for reconsideration and/or full Board review, contending that the Board improperly failed to fully consider the issue of apportionment of the SLU award with a prior injury. The Board denied the application in a decision filed June 10, 2020. The employer appeals.

Insofar as the employer has only appealed from the June 2020 decision denying its application for reconsideration and/or full Board review, the merits of the Board's underlying April 2020 decision are not properly before us (see Matter of Downer v. New York City Dept. of Corr., 189 A.D.3d 1855, 1856–1857, 138 N.Y.S.3d 246 [2020] ). Accordingly, "our review is limited to whether the Board's denial of the application was arbitrary and capricious or otherwise constituted an abuse of discretion" ( Matter of Singletary v. Schiavone Constr. Co., 174 A.D.3d 1240, 1242, 104 N.Y.S.3d 435 [2019] [internal quotation marks and citation omitted]; see Matter of Petre v. Allied Devices Corp., 191 A.D.3d 1086, 1088, 141 N.Y.S.3d 536 [2021], lv dismissed 37 N.Y.3d 938, 147 N.Y.S.3d 578, 170 N.E.3d 453 [2021] ).

In the application, the employer was required "to demonstrate that newly discovered evidence existed, that there had been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination" ( Matter of Castillo v. Brown, 151 A.D.3d 1310, 1311, 56 N.Y.S.3d 652 [2017] [internal quotation marks, brackets and citations omitted]; see Matter of McCormick...