Calendar Date: April 27, 2018Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.__________The Law Offices of Melissa A. Day, PLLC, Amherst (James B.Cousins of counsel), for appellants.Lewis & Lewis, PC, Jamestown (George Panebianco ofcounsel), for Timothy M. O’Connor, respondent.Barbara D. Underwood, Attorney General, New York City (NinaM. Sas of counsel), for Workers’ Compensation Board, respondent.__________Rumsey, J.Appeal from a decision of the Workers’ Compensation Board,filed December 13, 2016, which denied the motion by the employerand its workers’ compensation carrier to preclude claimant’smedical report.In July 2016, claimant, a heat treat operator, filed anapplication for workers’ compensation benefits alleging that hesuffered hearing loss due to repetitive noise exposure at work.In support of his claim, claimant submitted the medical narrativereport of Sayeed Nabi, an otolaryngologist, who diagnosedclaimant with a 4.06% binaural hearing loss causally-related tohis employment. The employer and its workers’ compensationcarrier (hereinafter collectively referred to as the employer)controverted the claim and, at the prehearing conference,asserted that Nabi was an independent medical examiner, not anattending physician, and, as such, the failure to comply with therequisite statutory and regulatory requirements of submitting anindependent medical report warranted its preclusion. A Workers’Compensation Law Judge rejected the employer’s contention andfound that there was sufficient medical evidence for the claim toproceed. The Workers’ Compensation Board affirmed. This appealby the employer ensued.Contrary to the employer’s contention, we find that theBoard’s decision “is interlocutory in nature and does not disposeof all the substantive issues nor reach legal threshold issueswhich may be determinative of the claim” (Matter of Ortiz vMartin Viette Nurseries, Inc., 82 AD3d 1480, 1480 [2011]). Wealso note that a determination regarding the admissibility ofprima facie medical evidence is interlocutory and should not beappealed until the claim is finally decided by the Board (see 12NYCRR 300.38 [g] [3] [i]; Martin Minkowitz, PracticeCommentaries, McKinney’s Cons Laws of NY, Book 64, Workers’Compensation Law § 23 at 446). To consider whether evidence wasproperly admissible would amount to a piecemeal review of theworkers’ compensation case, which should be avoided (see Matterof Bucci v New York City Tr. Auth., 154 AD3d 1046, 1047 [2017];Matter of Jaindl v Robert Green Chev-Olds, Inc., 106 AD3d 1417,1417 [2013]). Because the nonfinal decision is reviewable uponan appeal from the Board’s final decision, the appeal must bedismissed (see Matter of Bucci v New York City Tr. Auth., 154AD3d at 1047; Matter of Ortiz v Martin Viette Nurseries, Inc., 82AD3d at 1480-1481).McCarthy, J.P., Egan Jr., Devine and Mulvey, JJ., concur.ORDERED that the appeal is dismissed, without costs.ENTER:Robert D. MaybergerClerk of the Court
