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.

________________________________

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