                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 18, 2014                   517828
________________________________

In the Matter of the Claim of
   JAMES DIAZ,
                    Appellant,
      v

KLEINKNECHT ELECTRIC et al.,
                    Respondents,
      and                                   MEMORANDUM AND ORDER

SPECIAL FUND FOR REOPENED
   CASES,
                    Respondent.

WORKERS' COMPENSATION BOARD,
                    Respondent.
________________________________


Calendar Date:   October 6, 2014

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

                             __________


      Grey & Grey, LLP, Farmingdale (Robert E. Grey of counsel),
for appellant.

      Weiss, Wexler & Wornow, PC, New York City (Corey I.
Zimmerman of counsel), for Kleinknecht Electric and another,
respondents.

      Steven M. Licht, Special Funds Conservation Committee,
Albany (Jill B. Singer of counsel), for Special Fund for Reopened
Cases, respondent.

                             __________
                              -2-                517828

McCarthy, J.

      Appeal from a decision of an arbitrator, filed January 15,
2013, which determined, among other things, claimant's date of
disablement.

      Claimant was injured while running electrical cables for
the employer near the World Trade Center site beginning in
September 2001. He first sought medical treatment for his
injuries in April 2003, but continued to work until March 2011.
Claimant filed a workers' compensation claim related to the
injuries from his World Trade Center work. The employer's
workers' compensation carrier controverted the claim. The
collective bargaining agreement between claimant's union and the
electrical employers included an alternative dispute resolution
agreement authorized by Workers' Compensation Law § 25 (2-c).
Consistent with that agreement, claimant and the carrier began
arbitration concerning this claim. In December 2012, the
arbitrator classified claimant with a permanent total disability
due to these work-related injuries and established the date of
disablement as his last date of work in March 2011. Based on
that finding, the arbitrator established that claimant was
entitled to the maximum weekly rate of $739.83. In January 2013,
the arbitrator revisited the date of disablement and, after
hearing arguments, rescinded his decision and found the date of
disablement to be the date of claimant's first medical treatment
in April 2003, which reduced claimant's weekly award to the
maximum allowed in 2003, $400 per week. Claimant appeals.

      Workers' compensation claims generally reach this Court on
direct appeal from decisions of the Workers' Compensation Board
and are subject to the substantial evidence standard of review
(see Workers' Compensation Law § 23; Matter of Lucke v Ellis
Hosp., 119 AD3d 1050, 1051 [2014]; Matter of Bednarek v Caring
Professionals Inc., 111 AD3d 997, 998 [2013]). On the other
hand, determinations of workers' compensation claims by
arbitrators pursuant to an authorized alternative dispute
resolution program are not reviewed by the Board, but may be
appealed directly to this Court (see Workers' Compensation Law §
25 [2-c] [d]; 12 NYCRR 314.3 [b]). The substantial evidence
standard does not apply to appeals of claims reaching us through
                              -3-                517828

the latter procedural route (see Matter of Peterec-Tolino v
Commerical Elec. Contrs., Inc., 59 AD3d 752, 753 n [2009], lv
denied 13 NY3d 704 [2009]). Instead, these cases are reviewed
under the standard applicable to review of arbitration awards in
general (see CPLR 7511).

      Pursuant to that standard, courts have limited power to
review an arbitrator's award (see Matter of Falzone [New York
Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]; Wien & Malkin
LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479 [2006], cert
dismissed 548 US 940 [2006]). Courts may vacate an arbitration
award only if it was procured by "corruption, fraud or
misconduct," if the arbitrator was biased (CPLR 7511 [b] [1] [i];
see CPLR 7511 [b] [1] [ii]) or "if [the award] violates a strong
public policy, is irrational, or clearly exceeds a specifically
enumerated limitation on the arbitrator's power" (Matter of
Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d at 534).
"[A]n arbitrator's award should not be vacated for errors of law
and fact committed by the arbitrator and the courts should not
assume the role of overseers to mold the award to conform to
their sense of justice" (Wien & Malkin LLP v Helmsley-Spear,
Inc., 6 NY3d at 479-480; accord Matter of Peterec-Tolino v
Commerical Elec. Contrs., Inc., 59 AD3d at 753), nor should
courts "otherwise pass upon the merits of the dispute" (CPLR
7501).

      Claimant waived some of his current arguments by proceeding
with the arbitration without objecting. While claimant now
alleges that the arbitrator must have engaged in ex parte
communications with the carrier's counsel, claimant had knowledge
at the last arbitration hearing of the basis for the current
allegations. Not having objected to such alleged communications
or raised the specter of bias at the hearing, claimant waived
such allegations and cannot rely on them now (see Matter of J.P.
Stevens & Co. [Rytex Corp.], 34 NY2d 123, 129 [1974]; Matter of
Eastman Assoc., Inc. [Juan Ortoo Holdings, Ltd.], 90 AD3d 1284,
1286 [2011]).

      At the hearing, claimant's counsel did complain that the
hearing notice did not list the issues to be addressed. Even
assuming that there was a requirement to list the issues –
                              -4-                517828

despite the notice requirements mainly dealing with timeliness
(see CPLR 7506 [b] [requiring notice to give time and place of
hearing]; 12 NYCRR 314.2 [d] [1] [requiring "adequate and timely
notice"]) – claimant has not shown any prejudice because his
counsel stated that she was "certainly well prepared to argue"
the issue of date of disablement, did not request an adjournment
and made a thorough and well-reasoned argument, including case
citations.

      Claimant has not shown that the award was irrational, which
would require a showing of an utter lack of any proof to justify
the award (see Matter of Eastman Assoc., Inc. [Juan Ortoo
Holdings, Ltd.], 90 AD3d at 1285). Claimant presented proof that
his first treatment occurred in April 2003. As claimant concedes
that the date of disablement is a discretionary determination and
the date of first medical treatment is a proper option (see
Matter of Ryciak v Eastern Precision Resistor, 12 NY2d 29, 32
[1962]; Matter of Graniero v Northern Westchester Hosp., 265 AD2d
638, 639 [1999], lv denied 94 NY2d 759 [1999]), the arbitrator's
selection of that date was not irrational.

      Even if we were to accept claimant's contention that the
arbitrator committed an error of law by setting a date of
disablement that violated Workers' Compensation Law § 164, courts
cannot vacate an arbitration award solely based on an error of
law (see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d at 479-
480; Matter of Peterec-Tolino v Commerical Elec. Contrs., Inc.,
59 AD3d at 753-754).

     Lahtinen, J.P., Egan Jr., Devine and Clark, JJ., concur.
                        -5-                  517828

ORDERED that the decision is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
