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Case # G1419184
Date of Accident: 08/24/2015
District Office: NYC
Employer: Edy Home Improvement LLC
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 68141605
Date of Filing of Decision: 12/19/2017
Claimant's Attorney: Ginate O’Dwyer Gonzalez Gallardo & Winograd
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on November 21, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed February 22, 2017.

ISSUE

The issue presented for Mandatory Full Board Review is whether awards from January 4, 2016, to April 28, 2016, were properly made at a tentative temporary total disability rate even though claimant had some minimal earnings from working for relatives.

The Workers' Compensation Law Judge (WCLJ) made awards from January 4, 2016, to April 28, 2016, at the tentative temporary total disability rate of $400.00 per week, less $200.00 for the minimal work during this period of time.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would find that the claimant is not entitled to tentative awards at the temporary total disability rate because he was able to do some work, and therefore awards should be tentatively made at $200.00 a week, less the $200.00 he received.

The carrier filed an application for Mandatory Full Board Review on March 23, 2017, arguing that "the medical evidence of total disability is not accurate given Claimant's concession that he was working during that period."

The claimant did not file a timely rebuttal.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This case was initially established for injuries to the head, back and ribs, and it was subsequently amended to include the left knee. The average weekly wage for the year before the August 24, 2015, accident was set at $600.00 without prejudice.

The claimant testified at the August 1, 2016, hearing that he is not currently working, but he did some house cleaning between January 4, 2016, and April 28, 2016. The claimant testified that a relative would pick him up and give him some money to do cleaning around the home. The claimant did this every other week for two to three hours. The claimant's relative gave him twenty to twenty-five dollars for this. Over this period of time the claimant received $200.00. The claimant stopped this activity in May 2016 because of back pain.

Dr. Vidyasagar's report for the January 4, 2016, office visit indicates a temporary total disability. Dr. Prisciandaro and Dr. Megarrs' medical reports for this period of time all indicate that the claimant was temporarily totally disabled. The first medical reports indicating less than a total disability were Dr. Levin's IME dated April 28, 2016, which indicated no disability, and Dr. Weinstein's June 2, 2016, medical report, which indicated a moderate disability.

In a decision filed August 4, 2016, the WCLJ made awards from January 4, 2016, to April 28, 2016, at the tentative temporary total disability rate of $400.00 per week, less $200.00 for the minimal earnings claimant had during this period of time.

The carrier requested administrative review.

LEGAL ANALYSIS

In evaluating the medical evidence presented, the Board is not bound to accept the testimony or reports of any one expert, either in whole or in part, but is free to choose those it credits and reject those it does not credit (see Matter of Morrell v Onondaga County, 238 AD2d 805 [1997], lv denied 90 NY2d 808 [1997]; Matter of Wood v Leaseway Transp. Corp., 195 AD2d 622 [1993]). Thus, questions of credibility, reasonableness, and relative weight to be accorded to conflicting evidence are questions of fact that come within the exclusive province of the Board (see Matter of Berkley v Irving Trust Co., 15 AD3d 750 [2005]).

In this case, both the WCLJ and the Board Panel majority correctly determined that all the medical evidence from January 4, 2016, to April 28, 2016, showed a temporary total disability existed. The fact that the claimant was given money for some minimal cleaning tasks does not compel a different outcome because these minimal tasks are most properly characterized as pretext for the claimant's relatives to give him money, rather than being at work. Essentially, the activity performed by the claimant does not demonstrate an actual wage-earning capacity that would compel a finding of a partial disability.

Therefore, the preponderance of the evidence supports tentative awards at the temporary total rate from January 4, 2016, to April 28, 2016.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed August 4, 2016, is AFFIRMED. The case is continued.