                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 3, 2015                   518653
________________________________

In the Matter of the Claim of
   YUJUAN SHENG,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
TIME WARNER CABLE, INC., et al.,
                    Respondents.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   August 20, 2015

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

                             __________


     Yujuan Sheng, Briarwood, appellant pro se.

      Foley, Smit, O'Boyle & Weisman, Hauppauge (Theresa E.
Wolinski of counsel), for Time Warner Cable, Inc. and another,
respondents.

                             __________


McCarthy, J.

      Appeal from a decision of the Workers' Compensation Board,
filed February 28, 2014, which denied claimant's application for
reconsideration and/or full Board review.

      Claimant sustained work-related injuries to her back and
left hip in 2005 and was awarded workers' compensation benefits.
Benefit payments stopped in 2007 when claimant returned to work.
Her employment apparently ended in April 2008 and she
subsequently raised the issues of permanency and reduced wages.
A Workers' Compensation Law Judge (hereinafter WCLJ) awarded
                              -2-                518653

claimant additional benefits from April 11, 2008 to October 29,
2008, but found no further compensable lost time. By a decision
filed September 25, 2013, the Workers' Compensation Board
affirmed, and claimant applied for reconsideration and/or full
Board review. That request was denied by the Board in a February
2014 decision, and claimant now appeals to this Court.

      Inasmuch as claimant has appealed only from the Board's
February 2014 decision denying her application for
reconsideration and/or full Board review, the merits of the
underlying decision are not before us (see Matter of Mazzaferro v
Fast Track Structures, Inc., 106 AD3d 1302, 1302 [2013]; Matter
of McCorkle-Spaulding v Lowe's, 95 AD3d 1513, 1514 [2012]).
Accordingly, our inquiry is limited to whether the Board's denial
of the application was arbitrary or capricious or otherwise
constituted an abuse of discretion (see Matter of Pucci v DCH
Auto Group, 90 AD3d 1255, 1256 [2011]; Matter of Malone v VRD
Decorating, 68 AD3d 1570, 1570 [2009], lv dismissed 14 NY3d 825
[2010]). Here, claimant challenges the WCLJ's factual findings
and contends that she should have been found to have a permanent
disability. Further, she argues that she did not receive a fair
hearing, claiming that the WCLJ should have taken her testimony
prior to rendering a decision. Claimant's remedy regarding these
issues was to appeal the Board's September 2013 decision, which
she failed to do. Under these circumstances, we cannot say that
the Board's denial of claimant's application was arbitrary or
capricious or an abuse of its discretion (see Matter of Barber v
New York City Tr. Auth., 50 AD3d 1402, 1403 [2008]; Matter of
Robinson v Interstate Natl. Dealer, 50 AD3d 1325, 1326 [2008]).

     Lahtinen, J.P., Garry and Egan Jr., JJ., concur.
                        -3-                  518653

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
