ADJ13667342 — California WCAB decision

What the panel ordered

The WCAB granted defendant's petition for reconsideration, rescinded the March 27, 2026 Findings of Fact and Award, and returned the matter to the WCJ for further proceedings consistent with the opinion.p. 18

Defendant petitioned for reconsideration of the WCJ's Findings of Fact and Award issued March 27, 2026; the WCAB granted reconsideration, rescinded the F&A, and returned the matter to the WCJ for further proceedings.

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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 disabilityRemandedmultiple body parts

The WCJ's finding of increased earning potential over time for temporary disability was not supported by adequate legal basis; the WCAB ordered a single average weekly wage to be found for the entire period.

From the decision · page 9II. The Workers’ Compensation Act provides for temporary and permanent disability indemnity. (Lab. Code, § 4650 et seq.) We first address the findings and award regarding temporary disability indemnity. 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].) The calculation of an award of temporary disability requires (1) a determination of the employee’s average weekly earnings (which may be based on various calculations, including actual earnings or on earnings capacity), (2) the application of the minimum and maximum disability rates, and (3) a determination of the period the employee was temporarily totally disabled. Section 4453, subdivision (c), provides four methods to calculate average weekly earnings. (Lab. Code, § 4453(c)(1)-(4).) As relevant here, section 4453(c) provides: (1) Where the employment is for 30 or more hours a week and for five or more working days a week, the average weekly earnings shall be the number of working days a week times the daily earnings at the time of the injury.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant was injured in a motor vehicle accident on April 22, 2020, sustaining multiple severe injuries.

Favours Applicant prevailed

Established the basis for workers' compensation claim and injury AOE/COE.

From the decision · page 1Defendant seeks reconsideration of the Findings of Fact and Award (F&A) issued on March 27, 2026, wherein the workers’ compensation administrative law judge (WCJ) found, in pertinent part, that while employed by defendant on April 22, 2020, applicant sustained injury arising out of and in the course of employment (AOE/COE) to multiple body parts; that applicant’s earning potential increased twice during the time period April 2020 thru April 2022; that applicant is entitled to the differential between the rate paid by the defendant and the rate calculated based on his earning potential; that applicant is entitled to unpaid temporary total disability and that applicant’s attorney is entitled to a fee of 15% thereon. The WCJ also made a finding as to applicant’s ‘post injury, long term earnings potential.’ Defendant contends that the WCJ erred in finding that applicant’s earning potential and temporary disability rates increased over time; that the earning potential calculation for the purposes of permanent disability was incorrect; that applicant is not entitled to unpaid temporary total disability; and that his attorney is not entitled to a 15% fee. Defendant argues that the evidence presented does not support these findings because applicant did not provide specific, demonstrable

Applicant's testimony and positive employee praise notes demonstrated motivation and potential for higher earnings.

Favours Applicant prevailed

Supported the claim for increased earning potential and temporary disability benefits.

From the decision · page 512-14.) She stated that she would hire applicant for full time work, if she had the opportunity, including as an RBT or a supervisor. (Id. at p. 15.) She believed that applicant “had what it took to be a supervisor.” (Id. at p. 16.) She indicated that a lot of employees at ACES started part-time and then became full-time. (Ibid.) She herself had annual performance reviews and pay increases while at ACES. (Id. at p. 17.) Applicant had a number of very positive “employee praise” notes in his file. (Id. at pp. 17-19.) She testified

Vocational expert's reports lacked evidentiary value for long-term earning capacity due to reliance on inadmissible deposition testimony.

Favours Defendant prevailed

Undermined the evidence supporting the WCJ's finding of long-term earning potential for permanent disability.

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.

QMERelied upon · Clinical Neuropsychology

Diagnosed applicant with diffuse traumatic brain injury and multiple cognitive deficits after the accident.

From the decision · page 2(Applicant’s Exh. 13, Dr. Geiger PQME Report, at p. 3.) He was injured in a car accident on April 22, 2020, when he was driving between worksites. (Ibid.) His initial diagnoses included traumatic brain injury, multiple facial fractures, C-spine fractures, pulmonary contusions, pneumomediastinum, rib fractures, blunt abdominal trauma, liver injury, splenic injury and adrenal gland hemorrhage; he was in a coma for a month after the accident; and he went through multiple surgeries. (Id. at pp. 3-6.) On August 19, 2020, clinical neuropsychologist Elizabeth Cisneros, Ph.D., diagnosed applicant with diffuse traumatic brain injury with loss of consciousness greater than 24 hours with return to pre-existing consciousness; cognitive deficits due to cognitive brain injury; memory impairment; attention and concentration deficits; cognitive communication deficit; psychomotor deficit; and frontal lobe executive function deficit. (Id. at pp. 14-15.) Applicant received intensive treatment at Casa Colina Hospital for the first five months after the accident, including 5-day per week physical therapy,

QMERelied upon · Neuropsychology

Concluded applicant's neuropsychological disability is permanent and stationary, 100% industrially related.

From the decision · page 352.) Robert Tomaszewski, Ph.D., conducted an initial neuropsychological examination of applicant on July 7, 2022 and a follow up on December 12, 2022. (Applicant’s Exh. 19, Dr. Tomaszewski 12/12/22 report, at p. 1.) In the latter report, Dr. Tomaszewski listed applicant’s diagnoses as: mild neurocognitive disorder due to traumatic brain injury; diffuse traumatic brain injury, with loss of consciousness of >24 hours without return to preexisting conscious level with patient surviving; Pseudobulbar Affect Disorder; adjustment disorder with mixed anxiety and depressed mood, persistent and Insomnia Disorder. (Id. at p 11.) Dr. Tomaszewski concluded that applicant’s “neuropsychological disability status is most likely permanent and stationary and has reached maximum medical improvement” and that his impairments are 100% apportioned to the April 22, 2020 industrial injury. (Id. at pp. 12-13.) An expedited hearing on the issue of further medical treatment was held on December 16, 2024. (12/16/24 Minutes of Hearing, at pp. 1-2.) The parties stipulated to employment, to applicant’s injuries AOE/COE, and that employer had furnished some medical treatment. (Id. at p. 2.) On February 11, 2025, the WCJ issued a Findings and Award, in which he found, in pertinent

QMERelied upon · Neurology

Applicant sustained multiple severe injuries in a motor vehicle accident; reached probable maximum medical improvement neurologically by 9/30/22.

From the decision · page 2We have also reviewed the trial transcript from January 5, 2026, the second day of trial. Based on our review of the record, and for the reasons discussed below, we will grant reconsideration, rescind the March 27, 2026 F&A, and return this matter to the WCJ for further proceedings consistent with this opinion. BACKGROUND Applicant sustained injury to his head, brain, face, eyes, ribs, psyche, upper extremities, bladder, hypertension, teeth, liver, pulmonary, spleen, and right lower extremity as the result of a motor vehicle accident on April 22, 2020, while employed by defendant as an Applied Behavioral Analysis (ABA) therapist. (9/30/20 Application, at pp. 1-9.) The January 19, 2022 report from Qualified Medical Evaluator (QME) in Neurology, Kenneth H. Geiger, M.D., indicated that applicant began working for defendant on October 2018, as a therapist for individuals with mental disabilities.

The rules the panel named

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

Lab. Code, § 4650 et seq.

Calculation of temporary disability benefits requires determination of average weekly earnings, application of minimum and maximum rates, and determination of disability period.

Applied to temporary disability indemnity issue.

From the decision · page 9II. The Workers’ Compensation Act provides for temporary and permanent disability indemnity. (Lab. Code, § 4650 et seq.) We first address the findings and award regarding temporary disability indemnity. 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].) The calculation of an award of temporary disability requires (1) a determination of the employee’s average weekly earnings (which may be based on various calculations, including actual earnings or on earnings capacity), (2) the application of the minimum and maximum disability rates, and (3) a determination of the period the employee was temporarily totally disabled. Section 4453, subdivision (c), provides four methods to calculate average weekly earnings. (Lab. Code, § 4453(c)(1)-(4).) As relevant here, section 4453(c) provides: (1) Where the employment is for 30 or more hours a week and for five or more working days a week, the average weekly earnings shall be the number of working days a week times the daily earnings at the time of the injury.

Lab. Code, § 4453(c)(4)

Section 4453(c)(4) provides method to calculate average weekly earnings for part-time employment with multiple employers.

Applied to determine earning potential for temporary disability.

From the decision · page 9II. The Workers’ Compensation Act provides for temporary and permanent disability indemnity. (Lab. Code, § 4650 et seq.) We first address the findings and award regarding temporary disability indemnity. 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].) The calculation of an award of temporary disability requires (1) a determination of the employee’s average weekly earnings (which may be based on various calculations, including actual earnings or on earnings capacity), (2) the application of the minimum and maximum disability rates, and (3) a determination of the period the employee was temporarily totally disabled. Section 4453, subdivision (c), provides four methods to calculate average weekly earnings. (Lab. Code, § 4453(c)(1)-(4).) As relevant here, section 4453(c) provides: (1) Where the employment is for 30 or more hours a week and for five or more working days a week, the average weekly earnings shall be the number of working days a week times the daily earnings at the time of the injury.

Lab. Code, §§ 4452.5, 4659, 4453(c)

Permanent total disability defined as 100% permanent disability; indemnity based on average weekly earnings under section 4453.

Applied to permanent disability earning potential issue.

Rubalcava v. Workers’ Comp. Appeals Bd. (1990) 220 Cal.App.3d 901

Long-term earning capacity must be based on substantial evidence; findings must be supported by admitted evidence in the record.

Applied to reject unsupported long-term earning potential finding.

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 (en banc)

Decisions must be based on admitted evidence and supported by substantial evidence; an adequate record is necessary.

Applied to require substantial evidence for earning potential findings.

ADJ13667342 · July 6, 2026

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

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