                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: August 7, 2014                     518139
________________________________

In the Matter of the Claim of
   WORRELL BAILEY,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

BEN CICCONE, INC., et al.,
                    Appellants.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:    May 28, 2014

Before:    Peters, P.J., Lahtinen, Garry, Rose and Devine, JJ.

                              __________


      Hamberger & Weiss, Rochester (Ronald E. Weiss of counsel),
for appellants.

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

                              __________


Rose, J.

      Appeals from a decision and an amended decision of the
Workers' Compensation Board, filed October 25, 2012 and March 21,
2013, which, among other things, directed the employer's workers'
compensation carrier to make a deposit into the aggregate trust
fund pursuant to Workers' Compensation Law § 27 (2).

      In a prior decision, this Court affirmed an award of
benefits to claimant, who developed consequential neuromuscular
disease and an anxiety disorder after contracting Lyme disease
                              -2-                518139

during the course of his employment (104 AD3d 1017, 1017-1018
[2013]). The Workers' Compensation Board has since classified
claimant as permanently totally disabled as a result of his work-
related injury and directed the employer's workers' compensation
carrier to deposit the present value of unpaid benefits,
$341,123.64, into the aggregate trust fund. The employer and
carrier (hereinafter collectively referred to as the employer)
appeal.

      We affirm. The employer argues that the Board erred by
imposing a mandatory, rather than discretionary, deposit into the
aggregate trust fund because claimant was not classified with a
statutory permanent total disability under Workers' Compensation
Law § 15 (1). The employer concedes, however, that it did not
raise this issue either before the Workers' Compensation Law
Judge or in its initial application for review by the Board
panel, and the Board did not address it. While the employer did
raise the issue in an application for rehearing and/or full Board
review, a party's arguments addressed to full Board review are
not preserved by its appeal from a Board panel decision (see
Matter of Rogers v Community Health Ctr., 299 AD2d 604, 605
[2002], lv denied 99 NY2d 508 [2003]). Nor does the appeal from
the amended decision bring the issue up for review. Rather, our
review of that decision is limited to determining whether the
denial of full Board review was arbitrary and capricious (see
Matter of Barone v Interstate Maintenance Corp., 73 AD3d 1302,
1303 [2010]; Matter of D'Errico v New York City Dept. of
Corrections, 65 AD3d 795, 795-796 [2009], appeal dismissed 13
NY3d 899 [2009]), an issue that has not been addressed in the
employer's briefs.

     Peters, P.J., Lahtinen, Garry and Devine, JJ., concur.
                              -3-                  518139

      ORDERED that the decision and amended decision are
affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
