Larberg v. Suffolk Cnty. Police Dep't
| Decision Date | 28 May 2015 |
| Docket Number | 519259 |
| Parties | In the Matter of the Claim of Stephen LARBERG, Appellant, v. SUFFOLK COUNTY POLICE DEPARTMENT et al., Respondents. Workers' Compensation Board, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Stephen Larberg, South Farmingdale, appellant pro se.
Cherry, Edson & Kelly, LLP, Carle Place (David W. Faber of counsel), for Suffolk County Police Department and another, respondents.
Before: McCARTHY, J.P., LYNCH, DEVINE and CLARK, JJ.
McCARTHY, J.P.
Appeal from a decision of the Workers' Compensation Board, filed May 28, 2014, which denied claimant's request for reconsideration and/or full Board review.
Claimant alleged that he suffers from work-related heart disease
and, in 2008, the Workers' Compensation Board determined that his claim for workers' compensation benefits had properly been closed for lack of prima facie medical evidence. In 2013, he applied for reconsideration and/or full Board review. The Board denied his application, and claimant now appeals.
We affirm. Inasmuch as claimant has only appealed from the Board's denial of his request for full Board review, the merits of the underlying 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 Mazzaferro v. Fast Track Structures, Inc., 106 A.D.3d 1302, 1302, 964 N.Y.S.2d 917 [2013] ). Instead, the sole issue for our consideration is whether the denial of full Board review “was arbitrary and capricious or otherwise constituted an abuse of discretion” (Matter of Kalkbrenner v. Accord Corp., 123 A.D.3d at 1304, 998 N.Y.S.2d 533 ). The decision here was neither, as claimant 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 in making its initial determination” (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] ; accord Matter of Regan v. City of Hornell Police Dept., 124 A.D.3d 994, 997, 1 N.Y.S.3d 519 [2015] ).
ORDERED that the decision is affirmed, without costs.
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