Vargas v. Hampton Inn 35th St.

• Decision Date: 17 December 2020
• Docket Number: 530099
• Citation: 134 N.Y.S.3d 284 (Mem),189 A.D.3d 1857
• Parties: In the Matter of the Claim of Giovanny VARGAS, Appellant, v. HAMPTON INN 35TH STREET et al., Respondents. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1857

134 N.Y.S.3d 284 (Mem)

In the Matter of the Claim of Giovanny VARGAS, Appellant,

v. HAMPTON INN 35TH STREET et al., Respondents.Workers' Compensation Board, Respondent.

530099

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

Calendar Date: November 17, 2020

Decided and Entered: December 17, 2020

Giovanny Vargas, Norwalk, Connecticut, appellant pro se.

Burke Conway & Stiefeld, White Plains (Michelle Piantadosi of counsel), for Hampton Inn 35th Street and another, respondents.

Before: Egan Jr., J.P., Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a decision of the Workers' Compensation Board, filed June 7, 2019, which denied claimant's application for reconsideration and/or full Board review.

Claimant established a workers' compensation claim for injuries to his neck, left shoulder, left elbow and left wrist stemming from a 2012 accident. Various awards were paid to claimant at varying tentative rates. Claimant then requested modification of the awards that were made at tentative rates from September 12, 2012 to May 28, 2013 to a total disability rate. Ultimately, by decision filed March 29, 2019, the Workers' Compensation Board – noting the medical evidence and claimant's receipt of unemployment insurance benefits during the disputed period, as well as the parties' discussion and agreement with the Workers' Compensation Law Judge at a hearing regarding the issue of proper awards – ruled that the award was properly modified to reflect a partial disability rate. Thereafter, by decision filed June 7, 2019, the Board denied claimant's application for reconsideration and/or full Board review. Claimant appeals from the Board's June 7, 2019 decision.

We affirm. Inasmuch as the record reflects that claimant appealed only from the Board's June 2019 decision denying his application for reconsideration and/or full Board review, the merits of the March 29, 2019 decision are not properly before us (see Matter of Campos v. Federal Express Corp. , 181 A.D.3d 1118, 1119, 118 N.Y.S.3d 458 [2020] ; Matter of Cozzi v. American Stock Exch. , 148 A.D.3d 1500, 1500, 49 N.Y.S.3d 316 [2017], lv dismissed 30 N.Y.3d 937, 63 N.Y.S.3d 744, 85 N.E.3d 1018 [2017] ). Consequently, "our review is limited to whether the Board's denial of the application was arbitrary and capricious or otherwise constituted an abuse of discretion" ( Matter of Singletary v. Schiavone Constr. Co. , 174 A.D.3d 1240, 1242, 104 N.Y.S.3d 435 [2019] [internal quotation marks and citations omitted]; see Matter of Campos v. Federal Express Corp. , 181 A.D.3d at 1119, 118 N.Y.S.3d 458 ). Inasmuch as claimant did not ...