Lampo v. Eastman Kodak Co.

Appellate Division of the Supreme Court of New York

Lampo v. Eastman Kodak Co.

166 A.D.2d 806, 563 N.Y.S.2d 165, 1990 N.Y. App. Div. LEXIS 12815

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 25, 1990

StatusPublished

This text of 166 A.D.2d 806 (Lampo v. Eastman Kodak Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lampo v. Eastman Kodak Co., 166 A.D.2d 806, 563 N.Y.S.2d 165, 1990 N.Y. App. Div. LEXIS 12815 (N.Y. Ct. App. 1990).

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Opinion

Mercure, J.

Appeals from three decisions of the Workers’ Compensation Board, filed March 25, 1987, which, inter alia, denied claimant’s application for [807]*807reconsideration of a prior decision ruling that claimant was not entitled to additional disability benefits.

The testimony of Dr. David Smith that all of the objective measures of claimant’s visual performance showed her vision to be normal provided substantial evidence for the finding of the Workers’ Compensation Board that claimant suffered no loss of visual acuity. The contrary medical evidence merely created an issue of credibility for the Board’s resolution (see, Matter of Film v Holmes Transp., 147 AD2d 831). Further, it is undisputed that claimant received 26 weeks of disability payments during her absence from work following her knee injury, and there is no evidence in the record to support the contention that the employer’s long-term disability plan entitled claimant to further benefits. Moreover, the plan, providing benefits which claimant acknowledges are in excess of those required by State law, is regulated exclusively by the Employee Retirement Income Security Act of 1974 (29 USC § 1001 et seq.; see, Shaw v Delta Air Lines, 463 US 85). Finally, the Board’s decision to deny claimant’s application for reconsideration of her discrimination claim was neither an abuse of discretion nor arbitrary and capricious (see, Matter of Gibbons v Zara Constr. Co., 77 AD2d 675, 676, lv denied 52 NY2d 705) and, therefore, may not be disturbed. The record amply supports the Board’s determination that no new evidence was submitted to warrant reconsideration (see, supra).

Decisions affirmed, without costs. Mahoney, P. J., Casey, Weiss, Yesawich, Jr., and Mercure, JJ., concur.

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Mercure, J.

Appeals from three decisions of the Workers’ Compensation Board, filed March 25, 1987, which, inter alia, denied claimant’s application for [807]*807reconsideration of a prior decision ruling that claimant was not entitled to additional disability benefits.

The testimony of Dr. David Smith that all of the objective measures of claimant’s visual performance showed her vision to be normal provided substantial evidence for the finding of the Workers’ Compensation Board that claimant suffered no loss of visual acuity. The contrary medical evidence merely created an issue of credibility for the Board’s resolution (see, Matter of Film v Holmes Transp., 147 AD2d 831). Further, it is undisputed that claimant received 26 weeks of disability payments during her absence from work following her knee injury, and there is no evidence in the record to support the contention that the employer’s long-term disability plan entitled claimant to further benefits. Moreover, the plan, providing benefits which claimant acknowledges are in excess of those required by State law, is regulated exclusively by the Employee Retirement Income Security Act of 1974 (29 USC § 1001 et seq.; see, Shaw v Delta Air Lines, 463 US 85). Finally, the Board’s decision to deny claimant’s application for reconsideration of her discrimination claim was neither an abuse of discretion nor arbitrary and capricious (see, Matter of Gibbons v Zara Constr. Co., 77 AD2d 675, 676, lv denied 52 NY2d 705) and, therefore, may not be disturbed. The record amply supports the Board’s determination that no new evidence was submitted to warrant reconsideration (see, supra).

Decisions affirmed, without costs. Mahoney, P. J., Casey, Weiss, Yesawich, Jr., and Mercure, JJ., concur.

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166 A.D.2d 806, 563 N.Y.S.2d 165, 1990 N.Y. App. Div. LEXIS 12815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lampo-v-eastman-kodak-co-nyappdiv-1990.

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