ADJ9042051 · August 17, 2026

The Appeals Board found that the WCJ did not sufficiently review the evidence supporting the stipulated earnings and that due process requires further proceedings to determine the correct earnings rate based on substantial evidence.

Favours Applicant prevailed

The Appeals Board found the record unclear if the WCJ reviewed evidence beyond the stipulation, requiring further proceedings.

Applicant did not provide wage documentation or testimony on earnings; defendant submitted wage documentation including a benefits statement and wage worksheet.

Favours Defendant prevailed

This lack of evidence from applicant and presence of evidence from defendant favored the defense on the earnings issue but required further review.

Applicant filed a Petition for Reconsideration challenging the stipulated earnings and indemnity rate after the WCJ denied disqualification of PQME Dr. Sabsovich and upheld the stipulated earnings.

Favours Applicant prevailed

This procedural posture led to the Appeals Board granting reconsideration and deferring the earnings issue for further proceedings.

Applicant's petition to disqualify PQME Dr. Sabsovich was denied by the WCJ.

Applicant did not meet burden of proof to disqualify PQME Dr. Sabsovich.

Lab. Code, § 5702

A workers' compensation judge is not bound by parties' stipulations and may make further inquiry to determine the matter in controversy.

The WCJ must review evidence beyond stipulations to determine the correct earnings rate.

From the decision · page 8A stipulation of the parties, no matter how convenient, does not necessarily relieve the WCJ from conducting review of the record to determine if the stipulations are appropriate in the case at bar. Even when presented with a stipulation entered into by the parties, a WCJ is still authorized to “make the further investigation necessary to enable [the WCJ] to determine the matter in controversy.” (Section 5702.) This is because the Board may not leave matters undeveloped where it is clear further evidence is required. (Kuykendall v. WCAB (2000) 79 Cal.App.4th 396, 404 [65 Cal.Comp.Cases 264].) We therefore amend the F&O to defer the issue of earnings and return this case to the WCJ for further proceedings to consider the issue of whether the parties should be held to the agreement made at trial or whether substantial evidence supports that a different rate is appropriate. Although we express no opinion as to the ultimate resolution of any issue in this matter, in considering the issue, it will be important to keep in mind the statutory framework for determining earnings. Section 4453 provides in relevant part:

Lab. Code, § 5708

The Board may make inquiry in the manner best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of the division.

The Board returned the case for further proceedings to protect the applicant's substantial rights.

From the decision · page 7This is because the Board may make inquiry in the manner “which is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division.” (Lab. Code, § 5708.) In returning this case we are mindful that the parties to a workers’ compensation proceeding retain the fundamental rights to due process and fair hearing. (Rucker v. Workers’ Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) A fair hearing includes, but is not limited to, the opportunity to offer evidence in rebuttal. (Gangwish v. Workers’ Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584].) Indeed, no finding shall be made contrary to a stipulation of the parties without first giving the parties notice and an opportunity to be heard. (Cal. Code Regs., tit. 8, § 10835(b).) The WCJ’s “findings and the decision must be served upon all the parties together with a summary of the evidence received and relied upon and the reasons or grounds upon which the determination was made.” (Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) The WCJ, therefore, is required to refer to the evidence in the opinion on decision and clearly designate the evidence that forms the basis of the decision. (Section

Lamb v. Workers’ Comp. Appeals Bd. (1974) 11 Cal.3d 274

A decision must be based on admitted evidence and supported by substantial evidence.

The WCJ must identify evidence relied on and reasoning behind decision for meaningful review.

Lab. Code, §§ 4453(c)(1)

Where employment is for 30 or more hours a week and for five or more working days a week, average weekly earnings shall be the number of working days a week times the daily earnings at the time of the injury.

The Board noted the statutory framework for determining earnings and the lack of record on hours worked.

From the decision · page 8(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)

Where employment is for less than 30 hours per week, or where other methods cannot reasonably be applied, average weekly earnings shall be 100 percent of the sum which reasonably represents the average weekly earning capacity of the injured employee at the time of injury.

The Board noted the statutory framework for determining earnings and the lack of record on hours worked.

From the decision · page 9(4) Where the employment is for less than 30 hours per week, or where for any reason the foregoing methods of arriving at the average weekly earnings cannot reasonably and fairly be applied, the average weekly earnings shall be taken at 100 percent of the sum which reasonably represents the average weekly earning capacity of the injured employee at the time of his or her injury, due consideration being given to his or her actual earnings from all sources and employments.

Applicant did not provide wage documentation or testimony; defendant submitted wage documentation including a benefits statement and wage worksheet; record unclear if WCJ reviewed evidence beyond stipulation.