ADJ20695668 · June 12, 2026

The WCAB found the record insufficient to fairly determine the applicant's average weekly wage or earning capacity, deferring the issue for further evidentiary development.

From the decision · page 8The WCAB has a duty to further develop the record when there is a complete absence of (Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 393-395 [62 Cal.Comp.Cases 924]) or even insufficient (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]) evidence on an issue. The WCAB has a constitutional mandate to ensure "substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].)

Favours Defendant prevailed

This was the only objective evidence of earnings but did not fairly represent earning capacity due to short employment period.

Applicant testified credibly about potential earnings as a truck driver and willingness to work after additional training, with no rebuttal evidence from defendant.

Favours Applicant prevailed

Supported a finding that payroll records did not fairly represent earning capacity, requiring further development of the record.

From the decision · page 7In addition to agreeing with the WCJ that both parties failed to enter internet advertised salaries into the record, we also observe that defendant failed to offer any rebuttal evidence including witness testimony to applicant's assertions about potential earnings and his willingness to work after a few more hours of training. In fact, applicant asked for "a few more practice hours... To work on a few more driving skills with a coach. These included turning properly and backing up the truck." (MOH/SOE, January 27, 2026, at p. 6:6-7, 14-16.) Considering how the industrial event occurred, that neither applicant nor his trainer "felt they could put the [snow] chains on properly" (Id. at p. 4:2-12), applicant's request for a few more hours of training should not be conflated with an unwillingness to work. Accordingly, if the WCJ had found the applicant's testimony about potential earnings to be credible and substantial on that issue, that would have supported a finding of the same.

Lab. Code, 4453(c)

Computation of average weekly earnings under Labor Code section 4453(c) including consideration of earning capacity when employment is less than 30 hours per week or irregular.

The WCAB applied section 4453(c) to determine that the payroll records alone were insufficient and earning capacity must be considered.

From the decision · page 4II. Turning to the merits, in order to compute a worker's temporary indemnity rate, a worker's earning capacity (or average weekly earnings) must first be determined under 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. I.A.C. (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 pp. 594-595; Pham, supra, at pp. 632-633; Goytia v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 889, 894-895 [35 Cal.Comp.Cases 27].) In relevant part, section 4453 states: (c) Between the limits specified in subdivisions (a) and (b), the average weekly earnings, except as provided in Sections 4456 to 4459, shall be arrived at as follows:

Applicant's testimony about potential earnings and willingness to work after additional training was credible and supported by lack of rebuttal evidence from defendant.

From the decision · page 7In addition to agreeing with the WCJ that both parties failed to enter internet advertised salaries into the record, we also observe that defendant failed to offer any rebuttal evidence including witness testimony to applicant's assertions about potential earnings and his willingness to work after a few more hours of training. In fact, applicant asked for "a few more practice hours... To work on a few more driving skills with a coach. These included turning properly and backing up the truck." (MOH/SOE, January 27, 2026, at p. 6:6-7, 14-16.) Considering how the industrial event occurred, that neither applicant nor his trainer "felt they could put the [snow] chains on properly" (Id. at p. 4:2-12), applicant's request for a few more hours of training should not be conflated with an unwillingness to work. Accordingly, if the WCJ had found the applicant's testimony about potential earnings to be credible and substantial on that issue, that would have supported a finding of the same.

Defendant's payroll records were the only objective evidence of earnings but did not reflect applicant's earning capacity fairly due to short employment period.

From the decision · page 6The only objective piece of evidence admitted into evidence by the parties was the earnings records in Defendant's Exhibit A, showing what the applicant was earning while employed as a driver trainee for defendant. In his testimony at trial, the petitioner stated that it was his impression that once he became an experienced driver, he could earn 80 to 90 thousand dollars a year as a starting driver, and that that could go up to as high as 130,000 dollars a year with experience. He stated that when he started with the defendant employer, he possessed a commercial driver's license (Summary of Testimony, page 6: 1-3). He testified that he got this information on potential pay from the employer's own website (Summary of Testimony, page 6: 8-9), but neither party entered any confirming information into evidence.... Petitioner further testified that Western offered him a truck to drive, but he turned that offer down conditional on some further training (Summary of Testimony, page 6:5-7; 14-16; 22-25; page 7:1-2). Pay was not discussed.