Opinion
10-06-2016
In the Matter of the Claim of Dorota Von MAACK, Appellant, v. WYCKOFF HEIGHTS MEDICAL CENTER et al., Respondents. Workers' Compensation Board, Respondent.
Dorota Von Maack, Ridgewood, appellant pro se. William O'Brien, State Insurance Fund, New York City (Charlotte Flynn of counsel), for Wyckoff Heights Medical Center and another, respondents.
Dorota Von Maack, Ridgewood, appellant pro se.
William O'Brien, State Insurance Fund, New York City (Charlotte Flynn of counsel), for Wyckoff Heights Medical Center and another, respondents.
Before: McCARTHY, J.P., GARRY, DEVINE, CLARK and MULVEY, JJ.
DEVINE, J.
Appeal from a decision of the Workers' Compensation Board, filed July 3, 2014, which denied claimant's application for reconsideration and/or full Board review.
Claimant worked for the employer as a pharmacist and, as part of her duties, was involved in compounding chemotherapy drugs for the treatment of patients. She developed a persistent cough and breathing problems, allegedly due to her work environment, and filed a claim for workers' compensation benefits. The employer and its workers' compensation carrier controverted the claim. Following a number of hearings, a Workers' Compensation Law Judge concluded that claimant did not sustain a causally-related injury and disallowed her claim. A panel of the Workers' Compensation Board upheld the Workers' Compensation Law Judge's decision. Claimant unsuccessfully applied for reconsideration and/or full Board review, and she now appeals from the rejection of that application.
Inasmuch as claimant has only appealed from the decision denying her application for reconsideration and/or full Board review, the merits of the Board's underlying decision disallowing the claim are not properly before us (see Matter of Sheng v. Time Warner Cable, Inc., 131 A.D.3d 1283, 1284, 16 N.Y.S.3d 92 [2015], lv. dismissed 26 N.Y.3d 1060, 22 N.Y.S.3d 416, 43 N.E.3d 774 [2015] ; Matter of Ali v. Liberty Lines Tr., 131 A.D.3d 1288, 1289, 15 N.Y.S.3d 897 [2015] ). Our inquiry is therefore limited to whether the Board's denial of claimant's application was “arbitrary and capricious or otherwise constituted an abuse of discretion” ( Matter of Onuoha v. BJs Club 165, 139 A.D.3d 1274, 1275, 31 N.Y.S.3d 679 [2016] ; see Matter of Sheng v. Time Warner Cable, Inc., 131 A.D.3d at 1284, 16 N.Y.S.3d 92 ).
The record reveals that claimant failed to “show that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination” (Matter of D'Errico v. New York City Dept. of Corrections, 65 A.D.3d 795, 796, 883 N.Y.S.2d 828 [2009], appeal dismissed 13 N.Y.3d 899, 895 N.Y.S.2d 288, 922 N.E.2d 874 [2009] ; accord Matter of Ali v. Liberty Lines Tr., 131 A.D.3d at 1289, 15 N.Y.S.3d 897 ). Hence, we cannot say that the Board behaved in an arbitrary or capricious manner or abused its discretion in denying claimant's application for reconsideration and/or full Board review.
ORDERED that the decision is affirmed, without costs.
McCARTHY, J.P., GARRY, CLARK and MULVEY, JJ., concur.