IN RE: the Claim of Wendy WAGNER (2026)

MEMORANDUM AND ORDER

Appeal from a decision of the Workers’ Compensation Board, filed June 13, 2024, which denied claimant's application for reconsideration and/or full Board review.

In 1977, claimant slipped and fell while at work, sustaining serious injuries including injuries to her spinal cord, and the underlying claim for workers’ compensation benefits was established for the head and back.  In 1980, claimant was classified with a permanent partial disability and was referred to vocational rehabilitation.  In 1991, following a hearing, claimant was classified with a permanent total disability and symptomatic treatment was authorized for the neck and back, which included the administration of morphine, to address her pain and gastroesophageal and gastrointestinal symptoms.  Following various denials and partial approval of her requests for medications in 2022–2023, claimant requested a hearing to adjudicate, among other things, her requested medical exemption for the Medical Treatment Guidelines and Drug Formulary portal.  At the ensuing June 2023 and July 2023 hearings, claimant explained that she was seeking continuation of treatment from a non-Workers’ Compensation Board coded neurologist and prescription of certain pain management medications.  In a July 2023 decision, a Workers’ Compensation Law Judge (hereinafter the WCLJ) directed that the Medical Treatment Guidelines and Drug Formulary should apply to all treatment and denied claimant's request for a direction compelling the workers’ compensation carrier to pay for medical treatment by a non-Workers’ Compensation Board coded physician.  The WCLJ acknowledged that claimant and the carrier agreed 33 years ago that claimant could treat with a non-coded physician because of her difficulty in identifying an appropriate physician, but the WCLJ found that such agreement was outside of the WCLJ's jurisdiction and not something that could be enforced by the Board.  Upon administrative review, the Workers’ Compensation Board affirmed in a March 2024 decision, finding, among other things, that it has no authority to require the carrier to pay for medical services rendered by a non-coded medical provider, regardless of a prior agreement between claimant and the carrier that purportedly existed.  The Board also found that, in the absence of any other issues – including any pending or denied prior authorization requests for medication, disputed medical bills or variance requests – no other substantive issues were ripe for review and/or properly before it.  Claimant applied for reconsideration and/or full Board review of the Board's decision, which was subsequently denied.  Claimant appeals from the decision denying her application for reconsideration and/or full Board review.

We affirm.  As an initial matter, inasmuch as claimant has appealed only from the Board's decision denying her application for reconsideration and/or full Board review, the merits of the Board's March 2024 decision are not properly before us (see Matter of Lopez v. Platoon Constr., Inc., 212 A.D.3d 953, 954, 182 N.Y.S.3d 784 [3d Dept. 2023];  Matter of Petre v. Allied Devices Corp., 191 A.D.3d 1086, 1088, 141 N.Y.S.3d 536 [3d Dept. 2021], lv dismissed 37 N.Y.3d 938, 147 N.Y.S.3d 578, 170 N.E.3d 453 [2021];  Matter of Amaker v. City of N.Y. Dept. of Transp., 144 A.D.3d 1342, 1343, 40 N.Y.S.3d 802 [3d Dept. 2016]).  “As this Court previously has held, a request for full Board review does not toll the statutory time period within which to file an appeal pursuant to Workers’ Compensation Law § 23[,] and ․ an appeal from a denial of a request for reconsideration does not bring up for review the merits of the underlying decision” (Matter of Lopez v. Platoon Constr., Inc., 212 A.D.3d at 954, 182 N.Y.S.3d 784 [internal quotation marks and citations omitted];  see Matter of Singletary v. Schiavone Constr. Co., 174 A.D.3d 1240, 1242 n, 104 N.Y.S.3d 435 [3d Dept. 2019];  Matter of Alamin v. Down Town Taxi, Inc., 141 A.D.3d 975, 976, 34 N.Y.S.3d 794 [3d Dept. 2016], appeal dismissed 28 N.Y.3d 1153, 49 N.Y.S.3d 83, 71 N.E.3d 574 [2017]).  Accordingly, our inquiry is limited to whether the Board's denial of claimant's application was arbitrary and capricious or otherwise constituted an abuse of discretion (see Matter of Campos v. Federal Express Corp., 181 A.D.3d 1118, 1119, 118 N.Y.S.3d 458 [3d Dept. 2020];  Matter of Seck v. Quick Trak, 158 A.D.3d 919, 921, 71 N.Y.S.3d 649 [3d Dept. 2018]).

“To succeed on an application for reconsideration and/or full Board review, the applicant 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 Lopez v. Platoon Constr., Inc., 212 A.D.3d at 954, 182 N.Y.S.3d 784 [internal quotation marks, brackets and citations omitted];  see Matter of Duncan v. Crucible Metals, 165 A.D.3d 1377, 1378, 85 N.Y.S.3d 252 [3d Dept. 2018];  Matter of Levine v. Health First [HF Mgt. Servs. LLC], 147 A.D.3d 1193, 1195, 47 N.Y.S.3d 487 [3d Dept. 2017]).  Claimant failed to set forth any relevant newly discovered evidence, demonstrate a pertinent material change in condition or show that the Board improperly failed to consider the germane issues and evidence that were before it.  We are thus unpersuaded that the Board abused its discretion or acted arbitrarily in denying claimant's application for reconsideration and/or full Board review (see Matter of Lopez v. Platoon Constr., Inc., 212 A.D.3d at 954–955, 182 N.Y.S.3d 784;  Matter of Petre v. Allied Devices Corp., 191 A.D.3d at 1088, 141 N.Y.S.3d 536;  Matter of Regan v. City of Hornell Police Dept., 124 A.D.3d 994, 997, 1 N.Y.S.3d 519 [3d Dept. 2015]).  Most of the issues raised by claimant – including her contention that autonomic dysfunction is not adequately covered by the Medical Treatment Guidelines and Drug Formulary, each of which should therefore not apply to her – have not been properly presented to the Board in the first instance for resolution and are therefore not properly before us.  In any event, were we to address the issue ruled upon by the Board, we would discern no error in the Board's conclusion that it has no authority to obligate the carrier to pay for medical services rendered by a non-coded Workers’ Compensation Board provider (see Workers’ Compensation Law §§ 13–b [1];  13–f;  Employer:  Pilgrim Psychiatric Center, 2001 WL 1026921, *1, 2001 N.Y. Wrk Comp LEXIS 89239, *2 [WCB No. 2932 2191, Mar. 21, 2001];  see also Szold v. Outlet Embroidery Supply Co., 274 N.Y. 271, 277, 8 N.E.2d 858 [1937];  Matter of Cohen v. New York State Workers’ Compensation Bd., 122 A.D.3d 1222, 1222, 997 N.Y.S.2d 822 [3d Dept. 2014];  Matter of Van Dam v. New Paltz Cent. School Dist., 46 A.D.3d 1194, 1195, 848 N.Y.S.2d 424 [3d Dept. 2007]).

ORDERED that the decision is affirmed, without costs.

Fisher, J.

Aarons, J.P., Reynolds Fitzgerald, Ceresia and Corcoran, JJ., concur.