| Matter of Green v Kimber Mfg., Inc. |
| 2009 NY Slip Op 01047 [59 AD3d 782] |
| February 11, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Sherman Green, Appellant, v KimberManufacturing, Inc., Respondent. Workers' Compensation Board,Respondent. |
—[*1] Weiss, Wexler & Wornow, P.C., New York City (Louis R. Salvo of counsel), for KimberManufacturing, Inc., respondent.
Kavanagh, J. Appeal from a decision of the Workers' Compensation Board, filed April 3,2007, which denied claimant's application for reconsideration and/or full Board review.
In May 2003, claimant applied for workers' compensation benefits based upon awork-related injury that occurred in October 2002, but did not render him disabled untilDecember 2002. Following a hearing, a Workers' Compensation Law Judge established theclaim and awarded benefits. By decision filed in June 2006, the Workers' Compensation Boardreversed, finding that claimant had failed to provide the employer with timely notice of hiswork-related injury, which prejudiced the employer's ability to investigate the claim and, even ifnotice had been timely provided, claimant had failed to establish a compensable injury. Claimantdid not appeal from that decision, but subsequently applied for reconsideration and/or full Boardreview. The Board denied claimant's application, prompting this appeal.
We affirm. Inasmuch as claimant appeals from only the denial of his request forreconsideration and/or full Board review, the merits of the Board's June 2006 decision are notproperly before us (see Matter of Barberv New York City Tr. Auth., 50 AD3d 1402, 1403[*2][2008]; Matter of Robinson v Interstate Natl. Dealer, 50 AD3d 1325, 1326[2008]). Rather, our review is confined to whether the Board abused its discretion or acted in anarbitrary or capricious manner in denying claimant's application (see Matter of Barber v NewYork City Tr. Auth., 50 AD3d at 1403; Matter of Molina v Lopano, 47 AD3d 1083, 1084 [2008]).
In his application, claimant argued that further development of the record, in the form ofmedical records from 2002 and the testimony by two of his treating physicians, was necessary.The proffered evidence, however, was not new evidence that was previously unavailable at thetime of the hearing (see Matter ofHyland v Matarese, 56 AD3d 841, 844 [2008]; Matter of Rambally v Greenberg, 14 AD3d 742, 743 [2005]), nordoes it address the issue of lack of timely notice of the injury to the employer. Moreover,although claimant now takes issue with the Board's findings of fact and credibilitydeterminations in its June 2006 decision, we note that his remedy was to appeal that decision(see Matter of Barber v New York City Tr. Auth., 50 AD3d at 1403; Matter ofRobinson v Interstate Natl. Dealer, 50 AD3d at 1326), which he failed to do. Accordingly,we cannot conclude that the Board abused its discretion or acted in an arbitrary or capriciousmanner in denying claimant's application.
Mercure, J.P., Lahtinen and Malone Jr., JJ., concur. Ordered that the decision is affirmed,without costs.