In the Matter of The Claim of Enni Yarleque v. Sally Lou Inc.

• Decision Date: 13 May 2010
• Citation: 901 N.Y.S.2d 737,2010 N.Y. Slip Op. 04072,73 A.D.3d 1294
• Parties: In the Matter of the Claim of Enni YARLEQUE, Appellant,v.SALLY LOU, INC., et al., Respondents.Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

73 A.D.3d 1294

901 N.Y.S.2d 737

2010 N.Y. Slip Op. 04072

In the Matter of the Claim of Enni YARLEQUE, Appellant,

v.SALLY LOU, INC., et al., Respondents.Workers' Compensation Board, Respondent.

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

May 13, 2010.

John F. Clennan, Ronkonkoma, for appellant.Gregory J. Allen, State Insurance Fund, Melville (Jeremy B. Davis of counsel), for Sally Lou, Inc. and another, respondents.Before: MERCURE, J.P., ROSE, LAHTINEN, KAVANAGH and EGAN JR., JJ.ROSE, J.

Appeals from two decisions of the Workers' Compensation Board, filed May 6, 2008, which denied claimant's request for reconsideration or full Board review.

Claimant worked for the employer for less than four months in 1996. In June 2000, she submitted two applications for workers' compensation benefits allegedly arising out of that employment. The employer and its workers' compensation carrier (hereinafter collectively referred to as the carrier) asserted that both claims—one for carpal tunnel syndrome and the second for back, neck and shoulder injuries—were time-barred pursuant to Workers' Compensation Law § 28. Following hearings, a Workers' Compensation Law Judge ruled, in one decision, that the application premised on claimant's back, neck and shoulder injuries was timely and established that claim. Without addressing the carrier's statute of limitations argument, the Workers' Compensation Law Judge likewise established the claim related to claimant's carpal tunnel syndrome. Upon review, the Workers' Compensation Board reversed. Claimant did not appeal from that decision, but subsequently applied for reconsideration or full Board review. In two separate decisions the Board denied claimant's request and these appeals ensued.

Where, as here, a claimant's appeal is limited to the Board's denial of his or her request for full Board review or reconsideration, our analysis is confined to whether such denial was an abuse of discretion or arbitrary and capricious ( see Matter of D'Errico v. New York City Dept. of Corrections, 65 A.D.3d 795, 796, 883 N.Y.S.2d 828 [2009], appeal dismissed 13 N.Y.3d 899, 895 N.Y.S.2d 288, 922 N.E.2d 874 [2009]; Matter of Wariner v. Associated Press, 12 A.D.3d 863, 864, 784 N.Y.S.2d 716 [2004]; Matter of Graham v. Pathways, Inc., 305 A.D.2d 830, 831, 758 N.Y.S.2d 553 [2003], lv. dismissed 1 N.Y.3d 564, 775 N.Y.S.2d 777, 807 N.E.2d 889 [2003] ). “In that regard, the grounds for seeking review or reconsideration are narrow; the movant must generally 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 in making its initial determination” ( Matter of D'Errico v. New York City Dept. of Corrections, 65 A.D.3d at 796, 883 N.Y.S.2d 828 [citations omitted] ).

In this case, the Board in its underlying decision concluded that claimant's carpal tunnel syndrome was an occupational disease for which the latest possible date of disablement was November 1, 1996, when claimant stopped working. Consequently, the Board found that claimant's June 2000 application for workers' compensation...