                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 8, 2015                   520584
________________________________

In the Matter of the Claim of
   THOMAS RIESCHER,
                    Respondent,
      v

CENTRAL HUDSON GAS ELECTRIC,
                    Respondent,
      and

TRAVELERS INDEMNITY COMPANY OF
   AMERICA,                                 MEMORANDUM AND ORDER
                    Respondent,
      and

ALLIANCE NATIONAL INSURANCE CO.,
   Formerly Known as UTILITIES
   MUTUAL INSURANCE CO.,
                    Appellant.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   September 10, 2015

Before:   Lahtinen, J.P., Garry, Lynch and Devine, JJ.

                             __________


      Law Offices of Melissa A. Day, PLLC, Amherst (Megan B.
Szeliga of counsel), for appellant.

      Law Offices of John Wallace, Buffalo (Christina M. Hassler
of counsel), for Travelers Indemnity Company of America,
respondent.

                             __________

Garry, J.
                              -2-                520584

      Appeal from a decision of the Workers' Compensation Board,
filed April 18, 2014, which apportioned the increase in the
schedule loss of use award for claimant's left leg between
Alliance National Insurance Co. and Travelers Indemnity Company
of America.

      Claimant suffered two injuries to his left knee while he
was employed as a lineman for the employer, a utility company,
and filed claims for workers' compensation benefits with respect
to each. The first injury occurred in 1999 and eventually
resulted in claimant obtaining a schedule loss of use award for
his left leg of 30% (WCB case no. 59920830). Alliance National
Insurance Co., formerly known as Utilities Mutual Insurance Co.,
was the employer's insurance carrier at the time and was
responsible for paying this award. The second injury occurred in
2009 and resulted in a case being established for work-related
injuries to both of claimant's knees, including a total bilateral
knee replacement (WCB case no. G0210584). Travelers Indemnity
Company of America was the employer's insurance carrier at the
time of this injury. Based upon medical evidence attributing the
need for left knee surgery to both injuries and per the agreement
of the two carriers, the cost of claimant's left knee surgery was
apportioned 80% to the 1999 claim covered by Alliance and 20% to
the 2009 claim covered by Travelers.

      Thereafter, in February 2013, a Workers' Compensation Law
Judge (hereinafter WCLJ) ruled that the apportionment was
applicable only to the increase in the schedule loss of use award
for claimant's left leg. Following further proceedings at which
additional medical evidence was presented, the WCLJ issued a
reserved decision in May 2013 finding that claimant had an
overall schedule loss of use of his left leg of 50%, which
represented an increase of 20% over the prior schedule loss of
use award. Applying the apportionment percentages to the
increase and taking into account Alliance's responsibility for
the prior 30% schedule loss of use award, Alliance was
effectively responsible for 46% of the 50% overall schedule loss
of use award and Travelers was responsible for 4%. Accordingly,
Alliance made an application for Board review of the WCLJ's May
2013 reserved decision, arguing that the apportionment
percentages should be applied to the overall schedule loss of use
                              -3-                  520584

award, not just the increase. A panel of the Workers'
Compensation Board disagreed and affirmed the decision of the
WCLJ. Alliance now appeals.

      Initially, although the WCLJ's February 2013 decision
specifically stated that the stipulated apportionment percentages
applied "only to the increase in the schedule loss of use
regarding claimant's left leg," Alliance did not request Board
review of this decision in accordance with Workers' Compensation
Law § 23 even though it disagreed with the manner in which the
apportionment percentages were to be applied. Alliance, however,
did request Board review of the WCLJ's May 2013 reserved decision
establishing that claimant had a 50% overall schedule loss of use
and applying the percentages to determine each carrier's
liability. Contrary to Alliance's claim, the Board's decision
reveals that it fully considered Alliance's argument with respect
to the manner in which the apportionment percentages should have
been applied, but chose not to revisit this issue in light of the
WCLJ's February 2013 decision. We find that the Board did not
abuse its discretion in declining to reconsider the manner in
which the WCLJ applied the apportionment percentages (see Matter
of McCurty v Syracuse Univ., 34 AD3d 1012, 1013 [2006]) and
further that this issue is not properly before this Court (see
Matter of Harris v Phoenix Cent. School Dist., 28 AD3d 1051,
1052-1053 [2006]).

     Lahtinen, J.P., Lynch and Devine, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
