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In the Matter of the Claim of v. Mcroberts Protective Agency et al

State of New York Supreme Court, Appellate Division Third Judicial Department


December 30, 2010

IN THE MATTER OF THE CLAIM OF KHAWAR MAQSOOD, APPELLANT,
v.
MCROBERTS PROTECTIVE AGENCY ET AL.,
RESPONDENTS. WORKERS' COMPENSATION BOARD, RESPONDENT.

The opinion of the court was delivered by: Cardona, P.J.

New York Supreme and/or Appellate Courts 509016.pdf

Decided and Entered: December 30, 2010

MEMORANDUM AND ORDER

Calendar Date: November 22, 2010

Before: Cardona, P.J., Mercure, Malone Jr., Stein and Garry, JJ.

Appeal from a decision of the Workers' Compensation Board, filed February 4, 2010, which denied claimant's application for reconsideration or full Board review.

Claimant applied for workers' compensation benefits in July 2004, one month after being punched in the chest during the course of his employment as a security guard. Following hearings, a Workers' Compensation Law Judge denied the claim, finding that there was no medical evidence to support a causal relationship between claimant's work and his alleged cardiac condition. The Workers' Compensation Board, by decision filed June 25, 2008, affirmed that determination. Thereafter, the Board denied claimant's subsequent application for full Board review and/or reconsideration, prompting this appeal.

The merits of the Board's June 25, 2008 decision are not properly before us inasmuch as claimant appealed only from the Board's denial of his request for full Board review and/or reconsideration (see Matter of Cali v E.J. Militello Concrete, Inc., 66 AD3d 1067, 1068 [2009]). Thus, "our analysis is confined to whether such denial was an abuse of discretion or arbitrary and capricious" (Matter of Yarleque v Sally Lou, Inc., 73 AD3d 1294, 1294 [2010], lv dismissed 15 NY3d 770 [2010]). In that regard, claimant did not demonstrate a material change in his condition or present evidence that was previously unavailable; moreover, the record reveals that the Board fully considered all of the relevant issues in its initial decision (see Matter of D'Errico v New York City Dept. of Corrections, 65 AD3d 795, 796 [2009], appeal dismissed 13 NY3d 899 [2009]; Matter of Wariner v Associated Press, 12 AD3d 863, 864 [2004]). Accordingly, the Board's decision denying full Board review and/or reconsideration will not be disturbed.

Mercure, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20101230

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