                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 19, 2016                      521990
________________________________

In the Matter of the Claim of
   WANDA SANTIAGO,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

THE NY OPERATORS et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   April 21, 2016

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

                             __________


      Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel),
for appellant.

      Davis & Venturini, Hicksville (Christine Morehouse of
counsel), for The NY Operators and another, respondents.

                             __________


Egan Jr., J.

      Appeal from a decision of the Workers' Compensation Board,
filed January 26, 2015, which rescinded a decision of the
Workers' Compensation Law Judge and restored the case to the
trial calendar for further development of the record.

      Claimant sustained a work-related injury to her right hand
in September 2008 and subsequently developed a causally-related
injury to her left wrist. Although claimant was paid workers'
compensation benefits from October 2008 until December 2013,
there were substantial periods of time when she was paid at a
                              -2-                521990

tentative rate and awards were also held in abeyance for a period
of time. Payments were suspended in December 2013, based upon
the opinion of the employer's medical expert that claimant had
reached maximum medical improvement.

      Following hearings, a Workers' Compensation Law Judge
(hereinafter WCLJ) found a 17.5% loss of use of claimant's right
hand and a 7.5% loss of use of her left hand, crediting the
opinion of the employer's medical expert. The WCLJ made no
determination as to the period of time when awards were held in
abeyance or paid at a tentative rate, but concluded that the
amount of disability paid exceeded the amount of the schedule
loss of use plus any protracted healing period. On appeal, the
Workers' Compensation Board agreed that claimant's condition
warranted a schedule loss of use award, but found that claimant
had not been provided an opportunity to present evidence as to
the percentages of the schedule loss of use. Accordingly, the
Board rescinded the WCLJ's decision and restored the case for
further development of the record. Regarding claimant's request
for a modification of the awards both held in abeyance and paid
at a tentative rate, the Board concluded that, inasmuch as the
amount of disability paid to date exceeded the only expert
opinion in the record at that time as to the schedule loss of use
percentages, "to award [] claimant any further awards at this
point would be highly prejudicial to the [employer] under the
circumstances." Claimant now appeals, challenging the Board's
failure to make a determination as to the tentative rates and the
awards held in abeyance.

      Board decisions that are interlocutory in nature and do not
dispose of all of the substantive issues or reach a potentially
dispositive threshold legal question are not appealable (see
Matter of Lewis v Stewart's Mktg. Corp., 122 AD3d 1048, 1049
[2014]; Matter of Fetter v Verizon, 94 AD3d 1277, 1278 [2012]).
Here, we decline to review the Board's decision inasmuch as it
has directed further development of the record. Claimant may
appeal any issues implicated in this nonfinal Board decision,
including the amount of disability payments due, if any, upon an
appeal from the Board's final decision (see Matter of DePascale v
Magazine Distribs., Inc., 116 AD3d 1100, 1101 [2014]; Matter of
Hosler v Smallman, 106 AD3d 1218, 1219 [2013]).
                        -3-                  521990

McCarthy, J.P., Lynch, Devine and Mulvey, JJ., concur.



ORDERED that the appeal is dismissed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
