IN RE: the Claim of WORRELL BAILEY

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of WORRELL BAILEY, Respondent, v. BEN CICCONE, INC., et al., Appellants. WORKERS' COMPENSATION BOARD, Respondent.

518139

Decided: August 7, 2014

Before:  Peters, P.J., Lahtinen, Garry, Rose and Devine, JJ. Hamberger & Weiss, Rochester (Ronald E. Weiss of counsel), for appellants. Eric T. Schneiderman, Attorney General, New York City (Steven Segall of counsel), for Workers' Compensation Board, respondent.

MEMORANDUM AND ORDER

Calendar Date:  May 28, 2014

Appeals from a decision and an amended decision of the Workers' Compensation Board, filed October 25, 2012 and March 21, 2013, which, among other things, directed the employer's workers' compensation carrier to make a deposit into the aggregate trust fund pursuant to Workers' Compensation Law § 27(2).

In a prior decision, this Court affirmed an award of benefits to claimant, who developed consequential neuromuscular disease and an anxiety disorder after contracting Lyme disease during the course of his employment (104 AD3d 1017, 1017–1018 [2013] ).   The Workers' Compensation Board has since classified claimant as permanently totally disabled as a result of his work-related injury and directed the employer's workers' compensation carrier to deposit the present value of unpaid benefits, $341,123.64, into the aggregate trust fund.   The employer and carrier (hereinafter collectively referred to as the employer) appeal.

We affirm.   The employer argues that the Board erred by imposing a mandatory, rather than discretionary, deposit into the aggregate trust fund because claimant was not classified with a statutory permanent total disability under Workers' Compensation Law § 15(1).   The employer concedes, however, that it did not raise this issue either before the Workers' Compensation Law Judge or in its initial application for review by the Board panel, and the Board did not address it.   While the employer did raise the issue in an application for rehearing and/or full Board review, a party's arguments addressed to full Board review are not preserved by its appeal from a Board panel decision (see Matter of Rogers v. Community Health Ctr., 299 A.D.2d 604, 605 [2002], lv denied 99 N.Y.2d 508 [2003] ).   Nor does the appeal from the amended decision bring the issue up for review.   Rather, our review of that decision is limited to determining whether the denial of full Board review was arbitrary and capricious (see Matter of Barone v Interstate Maintenance Corp., 73 AD3d 1302, 1303 [2010];  Matter of D'Errico v New York City Dept. of Corrections, 65 AD3d 795, 795–796 [2009], appeal dismissed 13 NY3d 899 [2009] ), an issue that has not been addressed in the employer's briefs.

Peters, P.J., Lahtinen, Garry and Devine, JJ., concur.

ORDERED that the decision and amended decision are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

Rose, J.

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