IN RE: the Claim of Anthony SALERNO (1999)

Appeal from a decision of the Workers' Compensation Board, filed January 7, 1997, which, inter alia, rescinded a decision of the Workers' Compensation Law Judge and restored the case to the trial calendar for further development of the record.

In October 1993, claimant filed a claim for workers' compensation benefits for hearing loss due to exposure to noise during the years of his employment as a pressman.   By decisions of a Workers' Compensation Law Judge, occupational disease, notice and causal relationship (hereinafter ODNCR) were established and claimant was awarded benefits based upon findings of a July 17, 1995 last date of exposure and an October 17, 1995 date of disablement.   On the employer's appeal, the Workers' Compensation Board affirmed the establishment of ODNCR, rescinded as premature the award of compensation and restored the case to the trial calendar for further development of the record on the issue of claimant's removal from exposure to harmful noise or separation from work in which claimant was exposed to harmful noise (see, Workers' Compensation Law § 49-bb).   The employer appeals, contending that because the award of benefits was premature, the Board erred in affirming the establishment of ODNCR.

 An appeal from an interlocutory Board decision will be dismissed if it neither disposes of all substantive issues nor involves a threshold legal issue which may be dispositive of the claim (see, Matter of Acunzo v. Newsday, 140 A.D.2d 817, 818, 528 N.Y.S.2d 208;  Matter of McDowell v. La Voy, 59 A.D.2d 995, 399 N.Y.S.2d 709;  Minkowitz, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 64, Workers' Compensation Law § 23, at 272).   The Board's decision did not dispose of all substantive issues and the question of whether the Board prematurely ruled on the establishment of ODNCR is not a threshold legal issue which may be dispositive of the claim.   The appeal is, therefore, dismissed.

ORDERED that the appeal is dismissed, without costs.

MUGGLIN, J.

MIKOLL, J.P., CREW III, YESAWICH JR., and SPAIN, JJ., concur.