Opinion
2014-08-7
In the Matter of the Claim of Worrell BAILEY, Respondent, v. BEN CICCONE, INC., et al., Appellants. Workers' Compensation Board, Respondent.
Hamberger & Weiss, Rochester (Ronald E. Weiss of counsel), for appellants. Eric T. Schneiderman, Attorney General, New York City (Steven Segall of counsel), for Workers' Compensation Board, respondent.
Hamberger & Weiss, Rochester (Ronald E. Weiss of counsel), for appellants. Eric T. Schneiderman, Attorney General, New York City (Steven Segall of counsel), for Workers' Compensation Board, respondent.
Before: Peters, P.J., Lahtinen, Garry, Rose and Devine, JJ.
ROSE, J.
Appeals from a decision and an amended decision of the Workers' Compensation Board, filed October 25, 2012 and March 21, 2013, which, among other things, directed the employer's workers' compensation carrier to make a deposit into the aggregate trust fund pursuant to Workers' Compensation Law § 27(2).
In a prior decision, this Court affirmed an award of benefits to claimant, who developed consequential neuromuscular disease and an anxiety disorder after contracting Lyme disease during the course of his employment (104 A.D.3d 1017, 1017–1018, 960 N.Y.S.2d 736 [2013] ). The Workers' Compensation Board has since classified claimant as permanently totally disabled as a result of his work-related injury and directed the employer's workers' compensation carrier to deposit the present value of unpaid benefits, $341,123.64, into the aggregate trust fund. The employer and carrier (hereinafter collectively referred to as the employer) appeal.
We affirm. The employer argues that the Board erred by imposing a mandatory, rather than discretionary, deposit into the aggregate trust fund because claimant was not classified with a statutory permanent total disability under Workers' Compensation Law § 15(1). The employer concedes, however, that it did not raise this issue either before the Workers' Compensation Law Judge or in its initial application for review by the Board panel, and the Board did not address it. While the employer did raise the issue in an application for rehearing and/or full Board review, a party's arguments addressed to full Board review are not preserved by its appeal from a Board panel decision ( see Matter of Rogers v. Community Health Ctr., 299 A.D.2d 604, 605, 750 N.Y.S.2d 179 [2002],lv. denied99 N.Y.2d 508, 757 N.Y.S.2d 818, 787 N.E.2d 1164 [2003] ). Nor does the appeal from the amended decision bring the issue up for review. The amended decision did not address the argument raised on this appeal and, even assuming that the amended decision could be read as denying the arguments raised in the application to the full Board, our review of that decision would be limited to determining whether the denial of full Board review was arbitrary and capricious ( see Matter of Barone v. Interstate Maintenance Corp., 73 A.D.3d 1302, 1303, 900 N.Y.S.2d 511 [2010];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] ), an issue that has not been addressed in the employer's briefs.
ORDERED that the decision and amended decision are affirmed, without costs. PETERS, P.J., LAHTINEN, GARRY and DEVINE, JJ., concur.