                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 26, 2015                    518918
________________________________

In the Matter of the Claim of
   GEORGE BURNS,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE WORKERS'
   COMPENSATION BOARD et al.,
                    Respondents.
________________________________


Calendar Date:   February 11, 2015

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


      James Trauring & Associates, LLC, Schenectady (James
Trauring of counsel), for appellant.

      William O'Brien, State Insurance Fund, New York City
(Matthew R. Mead of Stockton, Barker & Mead, LLP, Troy, of
counsel), for New York State Workers' Compensation Board and
another, respondents.

                             __________


Devine, J.

      Appeal from a decision of an Arbitration Panel (pursuant to
Workers' Compensation Law § 20 [2] [d]), filed July 19, 2013,
which established claimant's average weekly wage.

      Claimant applied for workers' compensation benefits as the
result of injuries he sustained in an automobile accident.
Inasmuch as he worked for the Workers' Compensation Board, the
claim was addressed within the "neutral outside arbitration
process" provided for by Workers' Compensation Law § 20 (2) (a).
An arbitrator established the claim for various work-related
                              -2-                518918

injuries, determined claimant's average weekly wage under
Workers' Compensation Law § 14 (1), and awarded benefits.
Claimant nevertheless sought administrative review, arguing that
he had been promoted to a new position shortly before he was
injured and that his average weekly wage should have been
calculated under Workers' Compensation Law § 14 (2). An
arbitration panel declined to address that argument because it
had not been raised before the arbitrator, and claimant now
appeals.

      We affirm. The powers of the arbitration panel are
identical to those of the Board and, as such, it could decline to
review "any issues . . . that were not raised before the"
arbitrator (12 NYCRR 300.13 [e] [1] [iii]; see Workers'
Compensation Law § 20 [2] [e]). Claimant did not attack the
statement of earnings provided to the arbitrator by the Board,
and that statement did not indicate that any issue existed with
regard to the calculation of his average weekly wage. Thus,
"claimant failed to provide notice [to the arbitrator] that this
issue was in dispute," and the arbitration panel properly
declined to address it (Matter of Joyce v United Food &
Commercial Workers Local 342-50, 307 AD2d 552, 554 [2003]; see 12
NYCRR 300.13 [e] [1] [iii]; Matter of Brzezinski v Gambino, 100
AD3d 1192, 1193 [2012]).

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.
                        -3-                  518918

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
