Applicant's earnings in the 12 months prior to injury were depressed due to COVID-19 impact on the economy and employer's business, not due to applicant's inability to work or voluntary reduction in hours
Favours Applicant prevailed
This fact led the WCJ to initially apply Labor Code section 4453(c)(1) for AWE calculation, but the Appeals Board found it unreasonable and applied section 4453(c)(4) instead to reflect true earning capacity
From the decision · page 2It is inarguable that Applicant's earnings in the year prior to his August 28, 2021
injury, were depressed as a result of Covid and its impact on the economy and
the employer's business, and not due to Applicant's inability to physically work
or to voluntarily work less hours then he did in prior years. With government
ordered quarantines during the pandemic, and thereafter the legacy of people
staying home by choice, many people remained at home and the demand of the
Applicant credibly testified that pre-pandemic he worked 11 to 12 hours daily but during the pandemic worked fewer hours due to business drop, reflected in nearly halved earnings between 2019 and 2020
Favours Applicant prevailed
Supported the conclusion that the 12 months prior to injury did not reflect true earning capacity, favoring application of Labor Code section 4453(c)(4)
From the decision · page 13Here, we are persuaded that limiting the wage analysis to the 12 months prior to applicant's
date of injury will result in a similarly distorted basis for estimating applicant's true earning power.
The applicant testified credibly and without rebuttal that prior to the pandemic he often worked 11
to 12 hours each day. However, during the pandemic, "he would work 5 to 6 hours a day, initially
5 days a week, but later sometimes 4 or 3 days a week. The hours decreased because their business
dropped dramatically because customers were closed and did not need the produce." (Minutes, at
p. 5:38.) Applicant's testimony is further reflected in his annual earnings, which were nearly
halved between 2019 and 2020. (Ex. 3, W-2 Forms for 2019-2021.) The record thus reflects that
the period leading up to applicant's injury represented a significant departure from applicant's pre-
pandemic earnings and was the result of market forces beyond applicant's control. (Montana,
supra, 57 Cal.2d at p. 594.)