California WCABPanel decision

ADJ11418892 · June 5, 2023

Petition for Reconsideration granted to defer findings on applicant's earnings, temporary and permanent disability indemnity rates, and adequacy of temporary disability compensation; otherwise, Findings and Order of March 14, 2023 affirmed

Issues decided: 2
Medical opinions weighed: 2
Authorities named: 2
District office: San Diego

What the panel ordered

Petition for reconsideration of the March 14, 2023 Findings and Order granted in part and denied in part; interlocutory order to develop medical record affirmed

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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.

Temporary disabilityRemandedright knee · psyche

The WCJ's calculation of average weekly earnings was unclear and the WCAB granted reconsideration to defer findings on earnings and disability rates pending further development of the record.

Reopening / new and further disabilityDefendant prevailedback

The WCJ deferred findings on the industrial back injury pending further medical development, which was affirmed by the WCAB as an interlocutory order subject to removal standard rather than reconsideration.

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What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

PTPRelied upon · orthopedics

Ordered further evaluation and reporting on issues presented in this matter to develop the medical record.

From the decision · page 47. All other issues including the Labor Code Section 4660.1 issue are deferred pending the parties' development of the medical record by the parties. (F&O, pp. 1-2.) The WCJ issued the following order at the conclusion of trial: a. The parties did not provide the Court with any substantial medical to make factual determinations concerning the nature and extent of parts of body injured, the permanent and stationary date, or the level of permanent disability sustained. As such, the parties are ordered to return to both Dr. James McSweeney, M.D. (orthopedics) and Dr. Michael Takamura, M.D. (psyche) for further evaluation and reporting on the issues presented in this matter. Once that discovery has been completed, the parties are ordered to file a Declaration of Readiness to Proceed for further proceedings. (F&O, pp. 2-3.)

PTPRelied upon · psyche

Ordered further evaluation and reporting on issues presented in this matter to develop the medical record.

From the decision · page 47. All other issues including the Labor Code Section 4660.1 issue are deferred pending the parties' development of the medical record by the parties. (F&O, pp. 1-2.) The WCJ issued the following order at the conclusion of trial: a. The parties did not provide the Court with any substantial medical to make factual determinations concerning the nature and extent of parts of body injured, the permanent and stationary date, or the level of permanent disability sustained. As such, the parties are ordered to return to both Dr. James McSweeney, M.D. (orthopedics) and Dr. Michael Takamura, M.D. (psyche) for further evaluation and reporting on the issues presented in this matter. Once that discovery has been completed, the parties are ordered to file a Declaration of Readiness to Proceed for further proceedings. (F&O, pp. 2-3.)

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 4453

Labor Code section 4453 for computation of average weekly earnings

The WCJ's calculation of average weekly earnings was unclear and the WCAB reviewed the applicable Labor Code provisions to assess the calculation method.

From the decision · page 6In order to compute either temporary or permanent disability indemnity, a worker's earning capacity (or average weekly earnings) must first be determined under Labor Code section 4453. An estimate of earning capacity is a prediction of what a worker's earnings would have been had they not been injured. (Argonaut Ins. Co. v. Industrial Acci. Com. (Montana) (1962) 57 Cal.2d 589, 594 [27 Cal.Comp.Cases 130].) The method of computation of average weekly earnings is provided in section 4453, subdivision (c). (Pham v. Workers' Comp. Appeals Bd. (2000) 78 Cal.App.4th 626, 632 [65 Cal.Comp.Cases 139].) Subdivision (c)(1)-(3) provides formulas that take a worker's actual earnings as a starting point, whereas subdivision (c)(4) is for irregular employment or other situations where the first three formulas cannot reasonably and fairly be applied. (Montana, supra, at 594-595; Pham, supra, 632-633; Goytia v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 889, 894-895 [35 Cal.Comp.Cases 27].)

Labor Code section 4650 et seq.

Labor Code section 4650 et seq. for temporary and permanent disability indemnity

The WCJ's findings on temporary and permanent disability indemnity rates were deferred pending further development of the record.

From the decision · page 6In order to review the temporary disability rate, permanent disability rate, and whether applicant was adequately compensated for temporary disability indemnity, we must consider applicant's average weekly earnings at the time of injury. The Workers' Compensation Act provides for temporary and permanent disability indemnity. (Lab. Code, § 4650 et seq.) Temporary disability indemnity is intended primarily to substitute for the worker's lost wages, in order to maintain steady stream of income. (Chavira v. Workers' Comp. Appeals Bd. (1991) 235 Cal.App.3d 463, 473 [56 Cal.Comp.Cases 631].) Whereas permanent disability indemnity has a dual function: "to compensate both for actual incapacity to work and for physical impairment of the worker's body, which may or may not be incapacitating." (Id.)

ADJ11418892 · June 5, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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