What the panel ordered
Petition for Reconsideration denied
Petition for Reconsideration filed by defendant and denied by the Appeals Board panel
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.
The Appeals Board found the preponderance of the evidence supported the WCJ's finding that applicant was not a seasonal employee and had a reasonable expectation of continued employment, based on credible testimony and lack of evidence that applicant was informed of seasonal or temporary status.
From the decision · page 5Here, the crux of the issue is whether applicant was a seasonal employee or a regular employee, that is, one with the expectation of continued employment because the determination affects calculation of applicant's AWW and temporary disability rate. For the reasons detailed below, we find the preponderance of the evidence does support the WCJ's finding that applicant was not a seasonal employee.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's credible testimony that he was not informed he was a temporary employee and expected year-round work
Favours Applicant prevailed
Supported the finding that applicant was not a seasonal employee and had a reasonable expectation of continued employment.
From the decision · page 6The WCJ found applicant provided credible testimony. (Opinion on Decision, June 6 2025, p. 4, § 2, p. 5, § 3; Report, July 16, 2025, p. 6, § 2, p. 7, § 2.) We have given the WCJ's credibility determination great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500, 504-505].) Moreover, following our independent review of the record, we conclude there is no evidence of considerable substantiality that would warrant disturbing the WCJ's conclusions as to the weight of the evidence. (Id.)
Defendant failed to prove applicant received or read onboarding documents indicating seasonal employment
Favours Applicant prevailed
Undermined defendant's claim that applicant was seasonal, supporting the finding of reasonable expectation of continued employment.
Testimony that gophers were present year-round and work was ongoing beyond February 4, 2025
Favours Applicant prevailed
Supported the conclusion that the work was not seasonal and applicant expected continued employment.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5909
Labor Code section 5909
The Appeals Board must act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board.
From the decision · page 2Former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:
8 CCR 10116.9(q)
8 CCR 10116.9(q)
Defines seasonal work as daily hire, project hire, or annual season hire relevant to determining seasonal employment status.
From the decision · page 4Whether an employee is a seasonal employee or a regular full-time employee can affect the calculation of temporary disability indemnity. A seasonal employee's AWW is determined based on in-season earning capacity and off-season earning capacity. (See Jimenez v. San Joaquin Valley Labor, Superior Nat'l Ins. Co. (Jimenez) (2002) 67 Cal.Comp.Cases 74, 79 (Appeals Board en banc); Ochoa, supra, at p. 803.) "Seasonal work" as defined by AD Rule 10116.9(q) means employment as a daily hire, a project hire, or an annual season hire. (Cal. Code Regs. tit. 8, § 10116.9(q).) True seasonal employees are those "who work reasonably identifiable and defined seasons of reasonably identifiable and defined duration." (Jimenez, supra, at p. 79, fn 9.)
Jimenez v. San Joaquin Valley Labor, Superior Nat'l Ins. Co. (2002) 67 Cal.Comp.Cases 74
Jimenez v. San Joaquin Valley Labor, Superior Nat'l Ins. Co. (2002) 67 Cal.Comp.Cases 74
Seasonal work defined and factors for determining seasonal employment status discussed.
From the decision · page 4Whether an employee is a seasonal employee or a regular full-time employee can affect the calculation of temporary disability indemnity. A seasonal employee's AWW is determined based on in-season earning capacity and off-season earning capacity. (See Jimenez v. San Joaquin Valley Labor, Superior Nat'l Ins. Co. (Jimenez) (2002) 67 Cal.Comp.Cases 74, 79 (Appeals Board en banc); Ochoa, supra, at p. 803.) "Seasonal work" as defined by AD Rule 10116.9(q) means employment as a daily hire, a project hire, or an annual season hire. (Cal. Code Regs. tit. 8, § 10116.9(q).) True seasonal employees are those "who work reasonably identifiable and defined seasons of reasonably identifiable and defined duration." (Jimenez, supra, at p. 79, fn 9.)
Gamez v. Cal Enterprise Labor Solutions (2020) 85 Cal.Comp.Cases 871
Gamez v. Cal Enterprise Labor Solutions (2020) 85 Cal.Comp.Cases 871
Determination of seasonal vs. regular worker is fact-driven, with pre-injury evidence more probative.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's credible testimony that he was not informed he was a temporary employee and expected year-round work
From the decision · page 6The WCJ found applicant provided credible testimony. (Opinion on Decision, June 6 2025, p. 4, § 2, p. 5, § 3; Report, July 16, 2025, p. 6, § 2, p. 7, § 2.) We have given the WCJ's credibility determination great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500, 504-505].) Moreover, following our independent review of the record, we conclude there is no evidence of considerable substantiality that would warrant disturbing the WCJ's conclusions as to the weight of the evidence. (Id.)
Defendant failed to prove applicant received or read onboarding documents indicating seasonal employment
Testimony that gophers were present year-round and work was ongoing beyond February 4, 2025
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