Mazzaferro v. Fast Track Structures, Inc.

• Decision Date: 16 May 2013
• Parties: In the Matter of the Claim of Dominic MAZZAFERRO, Appellant, v. FAST TRACK STRUCTURES, INC., et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1302
964 N.Y.S.2d 917
2013 N.Y. Slip Op. 03527

In the Matter of the Claim of Dominic MAZZAFERRO, Appellant,
v.
FAST TRACK STRUCTURES, INC., et al., Respondents.
Workers' Compensation Board, Respondent.

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

May 16, 2013.

Dominic Mazzaferro, Rochester, appellant pro se.

*918Buckner & Kourofsky, Rochester (Jacklyn M. Penna of counsel), for Fast Track Structures, Inc. and another, respondents.

Before: LAHTINEN, J.P., STEIN, McCARTHY and EGAN JR., JJ.

LAHTINEN, J.P.

Appeal from a decision of the Workers' Compensation Board, filed May 24, 2012, which denied claimant's request for reconsideration and/or full Board review.

In 1995, claimant suffered a work-related hernia injury while working for the employer. Claimant's workers' compensation claim was thereafter established and he was awarded benefits. Claimant later developed a testicular infarction and subsequently sought to amend his workers' compensation claim to include the testicular infarction as a consequential injury. Following a hearing, a Workers' Compensation Law Judge denied claimant's application, finding that there was insufficient medical evidence of causality. Upon appeal, the Workers' Compensation Board affirmed. Claimant's application for reconsideration and/or full Board review was thereafter denied, and this appeal ensued.

Inasmuch as claimant has appealed only from the Board's denial of his request for reconsideration and/or full Board review, the merits of the underlying decision are not properly before us ( see Matter of Capalbo v. Stone & Webster Constr. Servs., 91 A.D.3d 1263, 1263–1264, 936 N.Y.S.2d 795 [2012];Matter of Maqsood v. McRoberts Protective Agency, 79 A.D.3d 1547, 1547, 914 N.Y.S.2d 351 [2010],lv. dismissed16 N.Y.3d 871, 923 N.Y.S.2d 407, 947 N.E.2d 1185 [2011] ). Accordingly, our analysis is limited to determining whether such denial was arbitrary and capricious or otherwise constituted an abuse of discretion ( see Matter of Capalbo v. Stone & Webster Constr. Servs., 91 A.D.3d at 1264, 936 N.Y.S.2d 795;Matter of Maqsood v. McRoberts Protective Agency, 79 A.D.3d at 1547, 914 N.Y.S.2d 351). In that regard, we decline to disturb the Board's decision, as the record reflects that the Board considered all of the relevant material in rendering its initial decision, and claimant did not demonstrate a material change in his condition or present evidence that was previously unavailable ( see Matter of DiPippo v....