| Matter of Barber v New York City Tr. Auth. |
| 2008 NY Slip Op 03529 [50 AD3d 1402] |
| April 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Addie Barber, Appellant, v New YorkCity Transit Authority et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Foley, Smit, O'Boyle & Weisman, New York City (Mark Kolber of counsel), for New YorkCity Transit Authority and another, respondents.
Rose, J. Appeal from a decision of the Workers' Compensation Board, filed January 29,2007, which denied claimant's application for reconsideration and/or full Board review.
Claimant sustained a work-related injury in 1994 and subsequently was awarded benefits atthe moderate partial disability rate for the period January 31, 1996 through September 15, 2000.By decision filed March 20, 2006, a panel of the Workers' Compensation Board affirmed, findingthat there was insufficient medical evidence to support claimant's contention that she was totallydisabled as of 1994. That decision was without prejudice to claimant reopening her claim andsubmitting additional medical evidence as to the level of her disability after her back surgery inJuly 1998. Claimant did not appeal from that decision.
Additional testimony was presented and, in July 2006, a Workers' Compensation Law Judgemodified the prior award with regard to certain periods after July 13, 1998. In August 2006,claimant applied for reconsideration and/or full Board review of the Board's March 2006 [*2]decision seeking an increased disability rate for the period January31, 1996 through July 13, 1998.[FN*]The Board denied claimant's application, prompting this appeal.
We affirm. As claimant appeals only from the denial of her request for reconsideration and/orfull Board review, the merits of the Board's March 2006 decision are not properly before us (see Matter of Molina v Lopano, 47AD3d 1083, 1084 [2008]; Matter ofDoherty v Colgate Univ., 3 AD3d 810 [2004]). Accordingly, our review is limited towhether the Board abused its discretion or acted in an arbitrary or capricious manner in denyingclaimant's application (see Matter of Doherty v Colgate Univ., 3 AD3d at 810-811).
Here, the very issue claimant attempts to raise on appeal—namely, whether she wastotally disabled as of 1994—was addressed and decided by the Board in its March 2006decision following review of the extensive record then before it. Insofar as she now takes issuewith the Board's factual findings or contends that she should have been permitted to introduceadditional medical testimony as to the nature of her disability between January 31, 1996 and July13, 1998, we need note only that her remedy in this regard was to appeal the Board's March 2006decision, which she failed to do. As she raises no other issue, we cannot say that the Boardabused its discretion or acted in an arbitrary or capricious manner in denying her application.
Cardona, P.J., Carpinello, Malone Jr. and Stein, JJ., concur. Ordered that the decision isaffirmed, without costs.
Footnote *: Although the actual applicationseeks review of the period from January 1, 1997 to July 12, 1998, claimant's brief addresses, andthe relevant time period under review indeed appears to be, January 31, 1996 through July 13,1998.