McCorkle–Spaulding v. Lowe's

• Decision Date: 17 May 2012
• Parties: In the Matter of the Claim of Victoria McCORKLE–SPAULDING, Appellant, v. LOWE'S et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 1513
945 N.Y.S.2d 430
2012 N.Y. Slip Op. 03900

In the Matter of the Claim of Victoria McCORKLE–SPAULDING, Appellant,
v.
LOWE'S et al., Respondents.
Workers' Compensation Board, Respondent.

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

May 17, 2012.

[945 N.Y.S.2d 431]

Victoria McCorkle–Spaulding, Corinth, appellant pro se.

Stockton, Barker & Mead, Albany (John B. Paniccia of counsel), for Lowe's and another, respondents.

Before: LAHTINEN, J.P., SPAIN, MALONE JR., KAVANAGH and McCARTHY, JJ.

MALONE JR., J.

[95 A.D.3d 1513]Appeals (1) from a decision of the Workers' Compensation Board, filed July 12, 2010, which ruled that claimant had no further causally related disability, and (2) from a decision of said Board, filed March 22, 2011, which denied claimant's request for reconsideration or full Board review.

In February 2008, claimant suffered a work-related injury to her left foot and received workers' compensation benefits. In [95 A.D.3d 1514]March 2009, claimant filed a C–3 form, claiming to have also suffered a causally related injury to her right foot as a result of the 2008 incident. Following hearings, the Workers' Compensation Law Judge denied the right foot claim. On review, the Workers' Compensation Board affirmed and subsequently denied claimant's request for reconsideration or full Board review.

Although claimant separately appealed from both the Board's underlying decision and the denial of reconsideration or full Board review, she failed to timely perfect her appeal from the underlying decision ( see22 NYCRR 800.12). Consequently, the merits of that decision are not properly before us ( see Matter of D'Errico v. New York City Dept. of Corrections, 65 A.D.3d 795, 795–796, 883 N.Y.S.2d 828 [2009],appeal dismissed13 N.Y.3d 899, 895 N.Y.S.2d 288, 922 N.E.2d 874 [2009];Matter of Dukes v. Capitol Formation, 213 A.D.2d 756, 756–757, 623 N.Y.S.2d 364 [1995],lv. dismissed86 N.Y.2d 810, 632 N.Y.S.2d 495, 656 N.E.2d 594 [1995],appeal dismissed87 N.Y.2d 891, 640 N.Y.S.2d 872, 663 N.E.2d 913 [1995] ). Therefore, our inquiry is limited to whether the Board abused its discretion or acted in an arbitrary or capricious manner in denying claimant's application for reconsideration or full Board review ( see Matter of Gentile v. Sovereign Motor Cars, 77 A.D.3d 1027, 1028, 909 N.Y.S.2d 165 [2010],lv. dismissed16 N.Y.3d 824, 921 N.Y.S.2d 185, 946 N.E.2d 173 [2011];Matter of Green v. Kimber Mfg., Inc., 59 A.D.3d 782, 783, 872 N.Y.S.2d 750 ...