                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 13, 2014                   518647
________________________________

In the Matter of the Claim of
   MICHAEL J. LEWIS,
                    Respondent,
      v

STEWART'S MARKETING CORPORATION             MEMORANDUM AND ORDER
   et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   October 17, 2014

Before:   Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.

                             __________


      Walsh & Hacker, Albany (Sean F. Nicolette of counsel), for
appellants.

      Eric T. Schneiderman, Attorney General, New York City
(Steven Segall of counsel), for Workers' Compensation Board,
respondent.

                             __________


Devine, J.

      Appeal from a decision of the Workers' Compensation Board,
filed June 17, 2013, which, among other things, denied a request
for review of a decision continuing the matter for testimony.

      In 1997, claimant injured his head and right shoulder in
the course of his employment and was awarded workers'
compensation benefits. The Workers' Compensation Board
classified him as having a permanent total disability in 2009,
                              -2-                518647

but this Court reversed on appeal due to the improper denial of
the employer's request to cross-examine claimant's physician (90
AD3d 1345, 1346 [2011]). At hearings held upon the Board's
return of the case to the trial calendar for further development
of the issues of permanency and proper award rate, the self-
insured employer presented an unsigned, proposed draft
stipulation that would have, among other things, classified
claimant with a permanent partial disability and stipulated to
particular compensation rates during certain time frames. The
Workers' Compensation Law Judge (hereinafter WCLJ) did not
approve the stipulation or refer to it in decisions following the
hearings, but continued the case for medical depositions and
additional testimony. The employer appealed, arguing that the
WCLJ should have approved the stipulation and that the WCLJ
should have been removed from the case because he had prejudged
the degree of claimant's injury. The Board noted that the
proposed stipulation did not resolve certain open issues and that
the employer sought to stipulate to issues beyond its authority
to resolve, and determined, in any event, that there was no
valid, signed stipulation in the record or decision regarding the
stipulation for the Board to review. The Board also declined to
remove the WCLJ from the case. The employer and its third-party
administrator now appeal.

      Inasmuch as "[t]he Board's decision was interlocutory and
did not dispose of all of the substantive issues or reach a
potentially dispositive threshold legal issue," it is not
appealable (Matter of Hosler v Smallman, 106 AD3d 1218, 1219
[2013] [internal quotation marks and citation omitted]; see
Matter of DePascale v Magazine Distribs., Inc., 116 AD3d 1100,
1101 [2014]). The Board has the power to disregard even a valid
stipulation if it chooses (see Matter of Hosler v Smallman, 106
AD3d at 1219). Here, the Board continued the case with respect
to the issues addressed by the stipulation, and "[w]e will not
conduct a piecemeal review of the issues presented in a nonfinal
decision in workers' compensation cases that will be reviewable
upon an appeal of the Board's final decision," which has since
been issued (Matter of DePascale v Magazine Distribs., Inc., 116
AD3d at 1101). Accordingly, the appeal is dismissed.
                        -3-                  518647

Stein, J.P., McCarthy, Garry and Lynch, JJ., concur.



ORDERED that the appeal is dismissed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
