                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 18, 2015                     518375
________________________________

In the Matter of the Claim of
   JOHN P. LATTANZIO,
                    Claimant,
      v

CONSOLIDATED EDISON OF NY                   MEMORANDUM AND ORDER
   et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   April 23, 2015

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


      Cherry, Edson & Kelly, LLP, Carle Place (David W. Faber of
counsel), for appellants.

      Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a decision of the Workers' Compensation Board,
filed May 7, 2013, which ruled, among other things, that
apportionment did not apply to claimant's workers' compensation
award.

      Claimant has had a neck condition requiring      surgeries and
intermittent treatment since 2000. Nevertheless,       claimant worked
full time with certain restrictions until October      2010, when he
fell at work and sustained injuries to his back.       Following
                              -2-                518375

several hearings and depositions in the instant claim for
workers' compensation benefits, a Workers' Compensation Law Judge
found, among other things, that claimant was entitled to benefits
and that apportionment was not warranted. Upon review, a panel
of the Workers' Compensation Board affirmed and the employer and
the third-party administrator (hereinafter collectively referred
to as the employer) appeal.

      The employer contends that Workers' Compensation Law § 15
(7) should be construed to permit apportionment between a current
compensable disability and a previous non-work-related,
noncompensable disability. Such an interpretation is untenable
as a matter of law inasmuch as apportionment is not applicable
"where the preexisting condition was not the result of a
compensable injury and the claimant was able to effectively
perform his or her job duties at the time of the work-related
accident despite the preexisting condition" (Matter of Bremner v
New Venture Gear, 31 AD3d 848, 848 [2006]; see Matter of Morin v
Town of Lake Luzerne, 100 AD3d 1197, 1198 [2012], lv denied 21
NY3d 865 [2013]). Here, the record establishes that claimant's
preexisting condition was not the result of a compensable injury
(see Matter of Bremner v New Venture Gear, 31 AD3d at 849). In
addition, although claimant suffered from back and neck pain
before the October 2010 accident and was under certain work
restrictions for his condition, he worked full time, and the
record is devoid of evidence that claimant's preexisting
condition limited his ability to satisfactorily perform his work
responsibilities (see Matter of Morin v Town of Lake Luzerne, 100
AD3d at 1198; Matter of Peck v Village of Gouverneur, 15 AD3d
735, 736 [2005], lv denied 5 NY3d 707 [2005]). Thus, we agree
with the Board that apportionment is not applicable here (see
Matter of Bremner v New Venture Gear, 31 AD3d at 849; Matter of
Hogan v Hilltop Manor of Niskayuna, 303 AD2d 822, 823-824
[2003]).

      The employer's remaining arguments are not properly
preserved for our review because they were not raised before the
Board during the administrative appeal (see Matter of Bland v
Gellman, Brydges & Schroff, 127 AD3d 1436, 1437 [2015]).

     McCarthy, J.P., Egan Jr. and Devine, JJ., concur.
                        -3-                  518375

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
