What the panel ordered
Petition for Reconsideration denied; December 24, 2020 Findings of Fact denying temporary disability benefits from June 23, 2020 onward affirmed.
Petition for Reconsideration filed by applicant challenging the December 24, 2020 Findings of Fact by the WCJ denying temporary disability benefits; WCJ Report recommended denial of the petition; WCAB panel affirmed the WCJ Findings after reconsideration.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
Applicant voluntarily retired for non-industrial reasons nearly three years before surgery and did not demonstrate willingness or efforts to return to work, thus no earning capacity was established for temporary disability benefits.
From the decision · page 1Applicant seeks reconsideration of the December 24, 2020 Findings of Fact issued by the workers' compensation administrative law judge (WCJ). Therein, the WCJ found that applicant is not entitled to temporary disability from June 23, 2020 to the present and continuing.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant voluntarily retired on September 1, 2017 for non-industrial reasons to care for his wife.
Favours Defendant prevailed
This retirement removed him from the labor market, negating earning capacity for temporary disability benefits.
From the decision · page 2For the reasons stated by the WCJ in the Report, we agree that applicant did not meet his burden of proving wage loss or earning capacity here. Applicant retired on September 1, 2017 to care for his wife who would be undergoing knee surgeries. (Minutes of Hearing and Summary of Evidence (MOH/SOE), 10/22/22, at p. 3:25 § 4:2.) The wife's first surgery was in November 2019 (id. at p. 4:18) and applicant's surgery was on June 23, 2020. (Id. at p. 3:22.) Although applicant testified vaguely that he had the intention to return to work (id. at p. 4:2-3; MOH/SOE, 12/1/20 at p. 2:13-18), there was no evidence that he ever actually attempted to return to work or
Applicant did not demonstrate any efforts or willingness to return to work after retirement and rejected an offer to return as a substitute employee.
Favours Defendant prevailed
Lack of willingness or attempts to work means no lost wages to replace, thus no entitlement to temporary disability benefits.
From the decision · page 3demonstrated an actual willingness to work. To the contrary, when he was offered to return to work, he rejected it. (MOH/SOE, 10/22/22, at p. 4:3-9.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code 4653
Temporary disability indemnity replaces wages lost due to industrial injury, based on two-thirds of average weekly earnings and ability to compete in open labor market (Lab. Code 4653).
Applicant must prove extent of earning capacity after retirement to qualify for temporary disability benefits.
From the decision · page 1Temporary disability indemnity is intended to replace wages lost on account of an industrial injury, the amount being "two-thirds of the average weekly earnings during the period of such disability, consideration being given to the ability of the injured employee to compete in an open labor market." (Lab. Code § 4653.) As the party seeking an award of temporary disability,
Lab. Code 5705
Applicant bears burden to prove intent to continue working after retirement to establish earning capacity (Lab. Code 5705).
Applicant did not demonstrate willingness or efforts to return to work after retirement.
From the decision · page 2applicant carries the burden of proof to demonstrate the extent of his earning capacity subsequent to his retirement by establishing his intent to continue to work after he retired. (Lab. Code, § 5705.)
Gonzales v. Workers' Comp. Appeals Bd. (1998) 68 Cal.App.4th 843
A retired injured worker who unequivocally denies interest in further employment is not entitled to temporary disability indemnity due to lack of lost earnings (Gonzales v. Workers' Comp. Appeals Bd. (1998)).
Applicant's voluntary retirement and lack of efforts to return to work led to denial of temporary disability benefits.
From the decision · page 2"[I]n making an award for temporary disability, the focus is on `whether an applicant would have continued working at a given wage for the duration of the disability.' [citation omitted].... An employee unwilling to work cannot be deemed to have an earnings capacity." (Gonzales v. Workers' Comp. Appeals. Bd. (1998) 68 Cal.App.4th 843 [63 Cal.Comp.Cases 1477, 1481].) "The elements of earning capacity include ability to work, willingness to work, and opportunity to work." (Id. at p. 1478.) If an injured worker voluntarily removes him or herself from the job market and did not retire because of the disability from the industrial injury, there may be no evidence of a willingness to work and or lost wages to be replaced.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony that he retired voluntarily to care for his wife and did not attempt to return to work after retirement; he rejected an offer to return to work.
From the decision · page 2For the reasons stated by the WCJ in the Report, we agree that applicant did not meet his burden of proving wage loss or earning capacity here. Applicant retired on September 1, 2017 to care for his wife who would be undergoing knee surgeries. (Minutes of Hearing and Summary of Evidence (MOH/SOE), 10/22/22, at p. 3:25 § 4:2.) The wife's first surgery was in November 2019 (id. at p. 4:18) and applicant's surgery was on June 23, 2020. (Id. at p. 3:22.) Although applicant testified vaguely that he had the intention to return to work (id. at p. 4:2-3; MOH/SOE, 12/1/20 at p. 2:13-18), there was no evidence that he ever actually attempted to return to work or
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About this page
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