IN RE: the Claim of Mary Lou CARROLL (2004)

Appeal from a decision of the Workers' Compensation Board, filed July 24, 2003, which denied claimant's application for reconsideration and/or full Board review of a prior decision ruling that the employer did not discriminate against claimant in violation of Workers' Compensation Law § 120.

Claimant was injured after falling at work on September 17, 1996 and was awarded workers' compensation benefits as a result.   Claimant was discharged in the fall of 1996, although whether she was terminated before or after her injury is in dispute.   Claimant then filed a complaint with the Workers' Compensation Board, alleging that she had been discharged because she filed a workers' compensation claim.   After several days of hearings, a Workers' Compensation Law Judge credited testimony that claimant was terminated due to her supervisor's dissatisfaction with her work, and found that claimant's termination was unrelated to the filing of a workers' compensation claim.   Claimant appealed, and the Workers' Compensation Board, in a decision filed August 12, 2002, affirmed.   No appeal from that decision was taken.   Claimant requested reconsideration and/or full Board review, which was denied in a decision filed July 24, 2003.   Claimant appeals from that decision.

 Claimant's timely appeal from the Board's denial of her request for reconsideration and/or full Board review “does not bring up for review the merits of the underlying decision” (Matter of Dukes v. Capitol Formation, 213 A.D.2d 756, 756-757, 623 N.Y.S.2d 364 [1995], lv. dismissed 86 N.Y.2d 810, 632 N.Y.S.2d 495, 656 N.E.2d 594 [1995], appeal dismissed 87 N.Y.2d 891, 640 N.Y.S.2d 872, 663 N.E.2d 913 [1995];  see Workers' Compensation Law § 23;  Matter of Shell v. Poughkeepsie Hous. Auth., 276 A.D.2d 843, 845, 714 N.Y.S.2d 547 [2000], lv. dismissed 96 N.Y.2d 731, 722 N.Y.S.2d 797, 745 N.E.2d 1019 [2001] ).   As such, our review is limited to whether claimant's request for reconsideration and/or full Board review was properly denied, a decision which we will not disturb “unless the Board abused its discretion or acted in an arbitrary or capricious manner” (Matter of Shell v. Poughkeepsie Hous. Auth., supra at 845, 714 N.Y.S.2d 547;  see Matter of Doherty v. Colgate Univ., 3 A.D.3d 810, 770 N.Y.S.2d 899 [2004] ).   Here, claimant sought to again contest the credibility determination of the Board, but provided no new evidence that would alter its finding that claimant had not been discriminated against as a result of her workers' compensation claim.   As such, we find no abuse of discretion in the Board's decision to deny claimant's request for reconsideration and/or full Board review (see Matter of Kozak v. SUNY at Old Westbury, 2 A.D.3d 1146, 768 N.Y.S.2d 421 [2003] ).

ORDERED that the decision is affirmed, without costs.

MUGGLIN, J.

MERCURE, J.P., CREW III, ROSE and LAHTINEN, JJ., concur.