Claim of Doherty v. Colgate University , 770 N.Y.S.2d 899 ( 2004 )

Crew III, J.P.

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.

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 AD2d 774 [2003]; Matter of Jean-Lubin v Home Care Servs. for Ind. Living, 295 AD2d 825, 826 [2002]). 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 AD2d 820, 821 [2000]). 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 AD2d 610, 611 [2002]), and the employer failed to provide a reasonable explanation for this lapse (see Matter of Hughes v Steuben County Self-Ins. Plan, 248 AD2d 757, 758 [1998]).

Carpinello, Rose, Lahtinen and Kane, JJ., concur. Ordered that the decision is affirmed, without costs.