State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 16, 2015 517497 

517498

517499

________________________________

In the Matter of the Claim of 

SHARON K. BLAND,

Appellant,

v

GELLMAN, BRYDGES & SCHROFF,

et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

(Claim No. 1.)

________________________________ MEMORANDUM AND ORDER

In the Matter of the Claim of 

SHARON K. BLAND,

Appellant,

v

RONCO COMMUNICATIONS et al.,

Respondents.

WORKERS' COMPENSATION BOARD,

Respondent.

(Claim No. 2.)

________________________________

Calendar Date: February 17, 2015

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

__________

Sharon K. Bland, Lewiston, appellant pro se.
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517498

517499 

Steven M. Licht, Special Funds Conservation Committee,

Albany (Jill B. Singer of counsel), for Special Fund for Reopened

Cases, respondent.

Hamberger & Weiss, Buffalo (Renee E. Heitger of counsel),

for Ronco Communications and another, respondent.

__________

McCarthy, J.P.

Appeals (1) from a decision of the Workers' Compensation

Board, filed August 26, 2013, which approved claimant's request

for a variance, (2) from a decision of said Board, filed August

26, 2013, which, among other things, granted claimant awards for

certain time periods, and (3) from a decision of said Board,

filed August 27, 2013, which, among other things, ordered the

workers' compensation carrier for Ronco Communications to audit

certain claimed expenses.

A 1993 workers' compensation claim was established for

claimant against Gellman, Brydges & Schroff, and responsibility

for that claim was later transferred to the Special Fund for

Reopened Cases (see Matter of Bland v Gellman, Brydges & Schroff,

103 AD3d 969, 969 [2013], lv dismissed 21 NY3d 920 [2013]; Matter

of Bland v Gellman, Brydges & Schroff, 100 AD3d 1289, 1290

[2012], lv denied 20 NY3d 1055 [2013]). A second claim, with a

2008 date of disablement, was established against Ronco

Communications, for which Travelers Insurance Company is the

responsible workers' compensation carrier. Liability was

apportioned equally between the two claims.

Regarding the first appeal (appeal No. 517497), a Workers'

Compensation Law Judge (hereinafter WCLJ) overturned Travelers'

denial of a variance for Botox injections to treat migraine

headaches, and approved that treatment. Travelers and Ronco

sought review by the Workers' Compensation Board, which affirmed

the WCLJ's decision approving the variance. 
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517498

517499 

Regarding the second appeal (appeal No. 517498), a WCLJ

found that claimant was attached to the labor market from June

2008 to December 2011 and granted certain awards for that time

period. Claimant and Ronco sought Board review. The Board

determined that claimant had proved her attachment to the labor

market, modified the WCLJ's awards for certain time periods and

found that claimant was not entitled to reimbursement for travel

expenses related to out-of-state treatment. 

Regarding the third appeal (appeal No. 517499), a WCLJ

found that Travelers was obligated to reimburse claimant for

certain expenses. Ronco and claimant each sought Board review. 

Noting that the transcript and written decision were inconsistent

and ordered Travelers to pay different amounts, the Board

rescinded the WCLJ's decision, and directed that Travelers audit

the claimed expenses and produce the results of such audit in a

certain format. Claimant filed a separate appeal from each of

these three decisions, which we have consolidated.

As for the first appeal, the Board has issued an amended

decision superceding the decision under review. As the decision

being challenged has now been superceded, the first appeal is

moot (see Matter of Bleakley v Verizon Servs. Group, 104 AD3d

1099, 1100 [2013]). 

As for the second appeal, claimant is not aggrieved by, and

therefore cannot seek review of, portions of the decision that

the Board decided in her favor. Claimant states that she agrees

with the Board's modification of the WCLJ's awards, but argues

that she is entitled to greater awards due to additional medical

documents that have allegedly surfaced. We find that the Board's

awards were supported by substantial evidence, namely the medical

documents that were reviewed, and we will not disturb those

awards (see Matter of Soluri v Superformula Prods., Inc., 96 AD3d

1292, 1292-1293 [2012]). While claimant attempts to relitigate

issues concerning out-of-state treatment and related travel

expenses, those issues were previously determined by this Court

(Matter of Bland v Gellman, Brydges & Schroff, 100 AD3d at 1291). 

The remaining arguments that claimant now raises are either not
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517498

517499 

properly preserved for our review, as they were not brought to

the Board's attention in her administrative appeal (see Matter of

Toledo v Administration for Children Servs., 112 AD3d 1209, 1210

[2013]), or they are without merit. 

As for the third appeal, the Board reasonably remitted the

matter for the WCLJ to resolve the difference between the

reimbursement amounts stated on the record and included in the

written decision (see Workers' Compensation Law § 20 [1]; 12

NYCRR 300.5 [a]). The Board directed Travelers to provide

detailed information supporting its audit in the format requested

by claimant. While claimant contends that Travelers has not done

so, this argument is not properly before us because it relates to

activities that occurred (or failed to occur) after the Board's

decision was filed. 

Claimant's remaining arguments either concern issues that

were decided in her favor, are not related to the decisions on

appeal, are not properly preserved or before this Court, or are

lacking in merit. 

Egan Jr., Devine and Clark, JJ., concur.

ORDERED that appeal No. 517497 is dismissed, as moot,

without costs.

ORDERED that the decisions in appeal Nos. 517498 and 517499

are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court