Opinion
93767.
Decided and Entered: January 29, 2004.
Appeal from a decision of the Workers' Compensation Board, filed July 2, 2002, which denied the employer's application for reconsideration and/or full Board review of a prior decision in favor of claimant.
Wolff, Goodrich Goldman L.L.P., Syracuse (George R. Wolff of counsel), for appellant.
Eliot Spitzer, Attorney General, New York City (Claire T. O'Keefe of counsel), for Workers' Compensation Board, respondent.
Before: Crew III, J.P., Carpinello, Rose, Lahtinen and Kane, JJ.
MEMORANDUM AND ORDER
In September 1997, claimant sustained a tear in the medial meniscus of his right knee in the course of his employment as a school soccer coach. Ultimately, a Workers' Compensation Law Judge adjudicated claimant with a 25% schedule loss of use of his right leg, entitling him to 72 weeks of benefits and authorizing medical treatment and care as necessary. This decision was affirmed by a Workers' Compensation Board panel. The employer's subsequent application for reconsideration and/or full Board review was denied, prompting this appeal.
As the employer appeals only from the denial of its request for reconsideration and/or full Board review, the merits of the Board's underlying decision are not properly before us (see Matter of Palma v. New York City Dept. of Corrections, 301 A.D.2d 774; Matter of Jean-Lubin v. Home Care Servs. for Ind. Living, 295 A.D.2d 825, 826). Hence, our review is limited to whether there was an abuse of the Board's discretion or whether it acted in an arbitrary or capricious manner in denying the employer's request for reconsideration and/or full Board review (see Matter of Thompson v. General Motors Corp./Delphi Harrison, 276 A.D.2d 820, 821). We find none. The opportunity to cross-examine a physician whose report has been incorporated into the record is contingent upon the request having been made in a timely fashion, which, in this matter, it was not (see Matter of Floyd v. Millard Fillmore Hosp., 299 A.D.2d 610, 611), and the employer failed to provide a reasonable explanation for this lapse (see Matter of Hughes v. Steuben County Self-Ins. Plan, 248 A.D.2d 757, 758).
Carpinello, Rose, Lahtinen and Kane, JJ., concur.
ORDERED that the decision is affirmed, without costs.