ADJ13695301 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration denied by WCAB panel after review of WCJ report and opinion

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.

Earnings / average weekly earningsDefendant prevailedhead · cervical spine

Applicant's average weekly earnings were properly calculated based on her earnings capacity under Labor Code section 4453(c)(4) because she worked less than 30 hours per week and had a fixed hourly rate during her limited term contract.

From the decision · page 6subdivision (c)(3). This argument appears to be based applicant's hourly rate of pay fluctuating dependent upon the assignments that she accepted each day. However, at the time of her injury, applicant was on a limited term assignment and her hourly earnings were fixed at $17.80 per hour. Further, it is undisputed that applicant worked less than 30 hours a week. Accordingly, applicant's average weekly earnings must be based on her earnings capacity. (Lab. Code, § 4453 (c)(4).)

The facts that decided it

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

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's credible testimony about her work hours and limitations due to her daughter's school schedule and non-industrial medical condition

From the decision · page 6Defendant correctly asserts that the Opinion on Decision placed undue emphasis on applicant's earnings at the time of her injury. However, my determination of applicant's earnings capacity is unchanged. Applicant's time cards reflect that there were ten weeks during the fifty two weeks between the week of October 22, 2018 and the week of October 14, 2019 during which she did not work. (Exhibit B.) Similarly, applicant testified that a non-industrial medical condition caused her to miss approximately thirteen weeks from work and work reduced hours for seventeen weeks, but that she planned to obtain a permanent position working for defendant. (MOH/SOE, supra, p. 6.) Her testimony was credible. The three week discrepancy regarding the number of weeks she missed from work and her apparent previous lack of interest in a permanent position are insufficient to rebut her testimony, which was accepted as true. (LeVesque v. Workmen's Comp.

Documentary evidencefavours Defendant prevailed

Defendant's spreadsheet and testimony about limited term assignments and eligibility lists impacting applicant's work hours

From the decision · page 4As relevant herein, Dustin Gacherieu testified as follows: He is defendant's human resources manager. (Id. at p. 8.) Applicant's need to accommodate her daughter's school schedule impacted her ability to accept assignments, and but for those limitations, applicant would have been able to work almost every day. (Ibid.) Applicant needed to be on the eligibility list for mod/severeparaprofessionals to complete the limited term contract, and if she was not on that eligibility list she would have only been able to perform the contract for 60 days. (Ibid.) He created a spreadsheet which showed that there was only one other such limited term contract for a mod/severe paraprofessional with a 24 hour work week. (Id. at p. 9.) The spreadsheet did show other limited term assignments for paraprofessionals with different classifications, which paid a lesser hourly rate than the mod/severe classification and required more hours of work. (Id. at pp. 9-10.) Applicant would not have been able to apply for some of those positions because she was not on the corresponding eligibility list. (Id. at p. 10.) If applicant worked five to five and a half hours a day,she would not have been able to pick up her daughter on Fridays, and to him, this reflected that applicant could make accommodations for her daughter on one day a week. (Ibid.)

ADJ13695301 · May 7, 2021

What the panel ordered

What was disputed, and how it came out

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