The opinion
Feuerstein, J.,
concurs in result only, with the following memorandum. I agree with the majority that the petition should be granted, however, only on the narrow basis that the determination by the respondents, the Board of Education of the Mamaroneck Union Free School District and the Mamaroneck Union Free School District (hereinafter the School District), to terminate the petitioner impermissibly invaded the primary jurisdiction of the Worker’s Compensation Board.
The law is settled that “primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board and that it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board” (Botwinick v Ogden, 59 NY2d 909, 911 ; see also, O’Rourke v Long, 41 NY2d 219 ; Manetta v Town of Hempstead Day Care Ctr., 248 AD2d 517 ; Becker v Clarkstown Cent. School Dist., 157 AD2d 641 ). Here, the School District, by attempting to terminate the petitioner based upon evidence that he was not truly disabled as a result of the injury he received at work, circumvented the authority of the Workers’ Compensation Board and its determination to award benefits. The School District’s contention that the termination proceeding addressed a different issue than that before the Workers’ Compensation Board is meritless. The School District’s conclusion that the petitioner was not really disabled was the precise issue before the Workers’ Compensation Board on the petitioner’s claim for benefits. By instituting its own proceeding to terminate the petitioner, the School District was attempting to insulate itself from review. Therefore, by addressing the School District’s determination on the merits, this Court is tacitly approving the circumvention of the Workers’ Compensation Board’s primary jurisdiction.
Further, I disagree that the above-cited cases are *570 distinguishable. It is true that the cases involved determinations of whether an employer-employee relationship existed and whether the claimant was injured in the scope of his or her employment. However, that does not change the fact that it is also within the Workers’ Compensation Board’s primary jurisdiction to determine who should or should not receive benefits (see, Workers’ Compensation Law § 20). The School District should have presented its evidence to the Workers’ Compensation Board (see, Workers’ Compensation Law § 22) and then, assuming it received a favorable determination, initiated a proceeding to terminate the petitioner. Accordingly, I believe the School District’s termination of the petitioner is improper unless the Worker’s Compensation Board first determines that the petitioner’s claim of disability is not legitimate.