                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 3, 2015                   519966
________________________________

In the Matter of ANGELA PAGE,
                    Appellant,
      v

LIBERTY CENTRAL SCHOOL                      MEMORANDUM AND ORDER
   DISTRICT,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   August 20, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Egan Jr., JJ.

                             __________


      Sussman & Watkins, Goshen (Michael H. Sussman of counsel),
for appellant.

      Sullivan Keenan Oliver & Violando, LLP, Albany (John M.
Oliver of counsel), for Liberty Central School District,
respondent.

                             __________


Lahtinen, J.P.

      Appeal from a decision of the Workers' Compensation Board,
filed January 8, 2014, which, among other things, reversed a
decision of a Workers' Compensation Law Judge directing further
development of the record.

      In July 2004, claimant, a school librarian, sought workers'
compensation benefits based upon an alleged disability resulting
from her exposure to toxic mold at the workplace. A claim for
hypersensitivity reaction to occupational presence of fungi was
                              -2-                519966

established. Claimant was found to have a temporary total
disability and an award of benefits was made. In 2006, the claim
was amended to include multiple chemical sensitivity and awards
for a marked disability were continued. Following various
litigation regarding medical reimbursement expenses, claimant's
degree of disability and her attachment to the labor market, the
Workers' Compensation Law Judge (hereinafter WCLJ), by decision
filed March 31, 2010, classified claimant with a permanent total
disability as a result of the work-related injury. The Workers'
Compensation Board modified that decision by rescinding the
finding of permanent total disability and referring the matter to
an impartial specialist to examine claimant and report to the
Board with respect to claimant's disability classification rate.

      When the matter was restored to the calendar, Theodore
Them, the impartial medical specialist who examined claimant,
testified that multiple chemical sensitivity is not a medically-
recognized condition and, in any event, it was his opinion that
claimant was not suffering from any causally-related disability.
By decision filed December 19, 2012, the Board credited the
testimony of Them, found no further causally-related disability,
thereby reversing the WCLJ's finding of total permanent
disability, and closed the case.

      On January 11, 2013, claimant filed a notice of appeal with
this Court as to the December 19, 2012 Board decision, but failed
to timely perfect that appeal. Claimant also, on that date, sent
a letter to the Board seeking a hearing to determine, in part,
her appropriate degree of disability. Claimant's January 17,
2013 application to the Board for reconsideration and/or full
Board review of its December 19, 2012 decision was denied on
March 28, 2013. Pursuant to her January 11, 2013 letter request,
a hearing was held on April 8, 2013 at which the WCLJ construed
the Board's December 19, 2012 decision as rejecting his prior
decision that claimant suffered a causally-related total
disability, but continued the case for further development of the
record to determine clamant's appropriate, lesser degree of
disability. The employer sought Board review of the WCLJ's
ensuing April 11, 2013 decision, which included the direction to
depose claimant's doctor, arguing that the Board's December 19,
2012 decision resolved the issue of claimant's degree of
                              -3-                  519966

disability by finding that claimant suffered no causally-related
disability and properly closed the case. By decision filed
January 8, 2014, the Board panel agreed with the employer and
claimant now appeals.

      We affirm. Claimant's appeal from the Board's January 8,
2014 decision limits our review to whether the Board abused its
discretion or acted in an arbitrary or capricious manner in
precluding further development of the record regarding the issue
of claimant's causally-related disability (see Matter of Barber v
New York City Tr. Auth., 50 AD3d 1402, 1403 [2008]). The Board
properly precluded further development of the record since the
issue of claimant's causally-related disability was addressed and
decided by the Board in its December 19, 2012 decision. To the
extent that claimant now asserts, on the instant appeal, that the
Board erred in crediting the opinion of the impartial specialist
that claimant had no causally-related disability, her remedy was
to perfect her appeal from the Board's December 19, 2012 decision
(see Matter of McCorkle-Spaulding v Lowe's, 95 AD3d 1513, 1514
[2012]).

     McCarthy, Garry and Egan Jr., JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
