What the panel ordered
Findings and Award issued on November 28, 2022 affirmed
Petition for Reconsideration filed by defendant, denied by WCJ, affirmed by WCAB panel after reconsideration
This docket was decided more than once. Shown here is the latest released decision; we also hold October 28, 2022, May 21, 2021.
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 WCJ correctly calculated the average weekly wage based on earnings at the time of injury, consistent with Labor Code section 4453(c) and relevant case law, rejecting defendant's argument to average over the entire tenure.
From the decision · page 5Under the foregoing authorities, the WCJ is required to determine the employee's AWW based upon the employee's "daily earnings at the time of the injury" and is generally not permitted to utilize evidence of previous earnings to diminish that calculation because the calculation is intended to reflect the employee's earning capacity, not necessarily the employee's earnings history. We discern no error in the F&A.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Favours Applicant prevailed
This supported the calculation of the average weekly wage at the time of injury above the state maximum, favoring applicant's claim.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code
Labor Code section 4453(c)
Governs calculation of average weekly earnings based on daily earnings at time of injury.
From the decision · page 3DISCUSSION Labor Code2 § 4453(c), which governs the calculation of average weekly earnings, states
California Court of Appeal
Pham v. Workers' Comp. Appeals Bd. (2000) 78 Cal.App.4th 626
Supports calculation of average weekly earnings based on earnings at time of injury, rejecting averaging over later periods.
From the decision · page 4The language of subdivision (c)(1) is explicit and direct, providing that where an injured employee is employed "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." (Pham v. Workers' Comp. Appeals Bd., supra, 78 Cal.App.4th at p. 635 [Emphasis in original].)
California Court of Appeal
County of San Joaquin v. Workers' Comp. Appeals Bd. (2007) 147 Cal.App.4th 1459
Clarifies that earning capacity is the benchmark for average weekly earnings, not just actual earnings at injury date.
From the decision · page 4Moreover, "[e]arning capacity is not locked into a straitjacket of the actual earnings of the worker at the date of injury; the term contemplates his general over-all capability and productivity; the term envisages a dynamic, not a static, test and cannot be compressed into earnings at a given moment of time. The term does not cut `capacity' to the procrustean bed of the earnings at the date of injury." (Goytia v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 889, 894 [83 Cal. Rptr. 591, 464 P.2d 47] (Goytia).) (County of San Joaquin v. Workers' Comp. Appeals Bd., supra, 147 Cal.App.4th at pp. 1464-1465.)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's earnings during the four-week period before death, including overtime and travel stipends, exceeded the state maximum wage.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
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