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IN RE: the Claim of Vernon SAWYER (2005)

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

IN RE: the Claim of Vernon SAWYER, Appellant, v. ORANGE MOTORS et al., Respondents. Workers' Compensation Board, Respondent.

Decided: December 29, 2005

Before:  CARDONA, P.J., CREW III, PETERS, SPAIN and KANE, JJ. Erwin, McCane & Daly, Albany (Thomas C. Erwin of counsel), for appellant. Steven Licht, Special Funds Conservation Committee, Albany (Melissa A. Day of counsel), for Special Funds Conservation Committee, respondent. Douglas J. Hayden, State Insurance Fund, Albany (Thomas A. Phillips of counsel), for State Insurance Fund, respondent.

Appeal from a decision of the Workers' Compensation Board, filed September 10, 2003, which rescinded a decision of the Workers' Compensation Law Judge and restored the case to the trial calendar for further development of the record.

After claimant's cases for compensable injuries arising out of two work-related accidents in December 1990 and October 1991 were established, he began receiving workers' compensation benefits.   Claimant subsequently started his own business and applied to the State Insurance Fund for reduced earnings benefits.   Following a hearing, a Workers' Compensation Law Judge ruled in claimant's favor by awarding him reduced earnings payments.   Upon the Fund's application for review, the Workers' Compensation Board held that, in calculating the appropriate reduced earnings benefits, claimant was entitled to deduct only “necessary/mandatory” expenses, and not “optional/elective” expenses, from his gross earnings.   After classifying certain expenses as “necessary/mandatory” and others as “optional/elective,” the Board rescinded the decision of the Workers' Compensation Law Judge and restored the case to the trial calendar to determine whether deductions were permissible for various other expenses.   Claimant appeals, contending that the Board's decision disallowing deductions for the expenses deemed “optional/elective” is unsupported by substantial evidence.

Inasmuch as the Board's decision-which essentially held claimant's reduced earnings benefits in abeyance pending consideration of a more developed record-was interlocutory in nature and neither disposed of all substantive issues nor reached a threshold legal issue which might be conclusive of the claim, the decision is not the proper subject of an appeal (see Matter of Reese v. Advanced Empl. Concepts, 15 A.D.3d 760, 761, 790 N.Y.S.2d 721 [2005];  Matter of Malkin v. Love Taxi, 299 A.D.2d 681, 682, 749 N.Y.S.2d 447 [2002];  Matter of Bathrick v. New York State Dept. of Transp., 298 A.D.2d 814, 814, 748 N.Y.S.2d 709 [2002] ).   Notably, piecemeal review of issues in workers' compensations cases should be avoided (see Matter of Karam v. Executive Charge/Love Taxi, 284 A.D.2d 599, 599, 725 N.Y.S.2d 577 [2001] ).   Since the Board's nonfinal decision challenged by claimant herein “may be reviewed upon the appeal from the final determination” (Matter of Boak v. O'Leary Funeral Home, 116 A.D.2d 827, 827, 497 N.Y.S.2d 613 [1986];  see Matter of Roller v. Lehigh Portland Cement Co., 89 A.D.2d 1040 [1982];  Matter of Huffman v. Lake City Contr. Corp., 74 A.D.2d 989, 990, 426 N.Y.S.2d 337 [1980] ), we conclude that the instant appeal must be dismissed.

ORDERED that the appeal is dismissed, without costs.



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