Matter of Nikolaeva v. Cattaraugus County Nursing Home

• Citation: 828 N.Y.S.2d 923,2007 NY Slip Op 01354,37 A.D.3d 969
• Decision Date: 15 February 2007
• Docket Number: 99498.
• Parties: In the Matter of the Claim of GALINA NIKOLAEVA, Appellant, v. CATTARAUGUS COUNTY NURSING HOME et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent.
• Court: New York Supreme Court Appellate Division

37 A.D.3d 969

828 N.Y.S.2d 923

2007 NY Slip Op 01354

In the Matter of the Claim of GALINA NIKOLAEVA, Appellant, v. CATTARAUGUS COUNTY NURSING HOME et al., Respondents.

WORKERS' COMPENSATION BOARD, Respondent.

99498.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided February 15, 2007.

Appeal from a decision of the Workers' Compensation Board, filed November 4, 2005, which denied claimant's application for reconsideration and/or full Board review of a prior decision ruling, inter alia, that claimant was entitled to workers' compensation benefits at a moderate to marked rate of disability.

Claimant, a nurse's aide, was awarded workers' compensation benefits after sustaining injuries when a nursing home patient struck her in the head. Her compensation was subsequently set at a moderate to marked rate of disability. The Workers' Compensation Board thereafter issued a decision which, among other things, rejected claimant's request to have her compensation increased to reflect a total rate of disability. Without appealing that decision to this Court, claimant instead sought reconsideration by the Board. The Board denied her application and it is from that decision that claimant now appeals.

Inasmuch as claimant has appealed from only the decision denying her application for reconsideration and/or full Board review, the merits of the underlying decision are not properly before us (see Matter of Marks v Evergreen Country Club, 27 AD3d 914, 915 [2006]; Matter of Snarski v New Jersey Mfrs. Ins. Group, 20 AD3d 803, 804 [2005]). Rather, our review is limited to determining whether the Board's denial of claimant's application was arbitrary and capricious or otherwise constituted an abuse of discretion (see Matter of Bromley v Rich Aluminum & Vinyl Siding, Inc., 19 AD3d 895, 896 [2005]; Matter of Rambally v Greenberg, 14 AD3d 742, 743 [2005]). Upon our review of the record, we are satisfied that the Board considered all of the evidence and issues before it, and that claimant failed to present any new evidence justifying modification of the prior decision (see Matter of Marks v Evergreen Country Club, supra at 915; Matter of Snarski v New Jersey Mfrs. Ins. Group, supra at 804). Accordingly, the Board's decision denying reconsideration and/or full Board review was neither arbitrary, capricious nor an abuse of discretion and, therefore, must be affirmed.

Mercure, J.P., Peters, Carpinello, Rose and Lahtinen, JJ., concur.

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