Claim of Amaker v. City of New York Department of Transportation , 40 N.Y.S.3d 802 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 17, 2016 521778
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In the Matter of the Claim of
JOEL AMAKER,
Appellant,
v
CITY OF NEW YORK DEPARTMENT OF MEMORANDUM AND ORDER
TRANSPORTATION,
Respondent.
WORKERS' COMPENSATION BOARD,
Respondent.
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Calendar Date: October 18, 2016
Before: Peters, P.J., Garry, Devine, Clark and Aarons, JJ.
__________
Joel Amaker, New York City, appellant pro se.
Zachary W. Carter, Corporation Counsel, New York City (Paul
M. Zaragoza of counsel), for City of New York Department of
Transportation, respondent.
__________
Devine, J.
Appeal from a decision of the Workers' Compensation Board,
filed September 2, 2015, which denied claimant's request for
reconsideration and/or full Board review.
In 1992, claimant, a traffic enforcement officer, sustained
work-related injuries to his leg and shoulder as a result of a
motor vehicle accident and was awarded workers' compensation
benefits. Claimant was subsequently classified with a permanent
partial disability and continued to receive benefits through
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March 2002. Thereafter, a Workers' Compensation Law Judge found
that claimant was in violation of Workers' Compensation Law
§ 114-a for continuing to receive workers' compensation benefits
after returning to work in 2000, and claimant was consequently
disqualified from receiving further wage replacement benefits.
Upon administrative review, the Workers' Compensation Board, in a
unanimous panel decision, denied claimant's application for
review as untimely filed. Claimant did not appeal from that
decision but subsequently applied for reconsideration and/or full
Board review. The Board denied the application, and claimant now
appeals.
We affirm. As an initial matter, we note that, "[i]nasmuch
as claimant has appealed from only the decision denying [his]
application for reconsideration and/or full Board review, the
merits of the underlying decision are not properly before us"
(Matter of Woods v New York State Thruway Auth., 93 AD3d 1050,
1051 [2012] [internal quotation marks and citations omitted], lv
dismissed 19 NY3d 1086 [2012]; see Matter of Alamin v Down Town
Taxi, Inc., 141 AD3d 975, 976 [2016]). In order to obtain review
or reconsideration, claimant must demonstrate 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 AD3d 795, 796 [2009], appeal dismissed 13 NY3d
899 [2009]; see Matter of Regan v City of Hornell Police Dept.,
124 AD3d 994, 997 [2015]). In addition, "our review is limited
to whether the Board's denial of the application was arbitrary
and capricious or otherwise constituted an abuse of discretion"
(Matter of Alamin v Down Town Taxi, Inc., 141 AD3d at 976
[internal quotation marks and citations omitted]; accord Matter
of Kaja v Siller Bros., Inc., 74 AD3d 1511, 1512 [2010]; Matter
of Marks v Evergreen Country Club, 27 AD3d 914, 915 [2006]).
Here, inasmuch as claimant dedicates his argument to the
characterization and treatment of his hearing testimony by the
Workers' Compensation Law Judge and the inferences drawn
therefrom, he has failed to address in support of his application
for full Board review any newly discovered evidence or allege a
material change in condition that is germane to the Board's
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finding that his application for review was untimely. Moreover,
upon reviewing the record before us, we are unpersuaded that the
Board failed to consider the evidence and issues properly before
it, and we therefore conclude that the Board's denial of
claimant's application for full Board review and/or
reconsideration was neither arbitrary and capricious nor an abuse
of discretion (see Matter of Alamin v Down Town Taxi, Inc., 141
AD3d at 976; Matter of Riescher v Central Hudson Gas Elec., 132
AD3d 1052, 1053 [2015]).
Peters, P.J., Garry, Clark and Aarons, JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court