Claim of Buchanon v. Adirondack Steel Casting Co.

175 A.D.2d 971, 573 N.Y.S.2d 775, 1991 N.Y. App. Div. LEXIS 11450

Opinion

— Appeals from a decision and an amended decision of the Workers’ Compensation Board, filed February 12, 1990 and September 27, 1990, which, inter alia, ruled that claimant does not have a total industrial disability.

Initially, we reject the employer’s contention that claimant’s supplemental notice of appeal was untimely filed given the fact that no proof was presented as to when notice of the Workers’ Compensation Board’s amended decision was served upon the parties (see, Workers’ Compensation Law § 23; see also, Matter of Clark v General Elec. Corp., 66 AD2d 983). As to the merits of claimant’s case, the Board has plenary authority to modify or rescind its previous decisions (see, Matter of Scandale v New York Tel. Co., 55 AD2d 761). Here, the Board’s decision to amend its prior decision is unreviewable insofar as the record fails to reveal any facts showing that its action was arbitrary or capricious (see, Matter of Cuervo v CAB Motor Co., 133 AD2d 894). Additionally, the Board’s conclusion that claimant did not suffer a total industrial disability was supported by substantial evidence. The issues presented essentially revolved around a conflict of medical opinion which merely presented a question of fact for the Board to resolve (see, Matter of Stiso v Hallen Constr. Co., 135 AD2d 974). Claimant’s remaining arguments have been considered and rejected as lacking in merit.

Mahoney, P. J., Casey, Mikoll, Levine and Crew III, JJ., concur. Ordered that the decision and amended decision are affirmed, without costs.