What the panel ordered
Findings and Award and Orders dated September 29, 2021 affirmed except permanent disability rating rescinded and deferred; issues of average weekly earnings and permanent disability deferred pending further proceedings; matter returned to trial level for further proceedings and new decision by WCJ.
Petition for reconsideration granted; decision after reconsideration issued; matter returned to trial level for further proceedings and new decision by WCJ on outstanding issues.
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 must revisit and specify the method for determining average weekly earnings, including room and board as remuneration, as the prior finding was not sufficiently developed or specified.
From the decision · page 6We conclude that the WCJ must revisit the issue of average weekly earnings and specify which provisions of section 4453(c) she wishes to rely upon to determine the issue, including, as appropriate, case law relevant to the four methods of determining the issue described in subdivision (c). If the WCJ finds it appropriate to consider applicant's earning capacity pursuant to subparagraph (4) of section 4453(c), she should further develop the record as deemed necessary to determine that issue. (Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1164 (66 Cal.Comp.Cases 1290) [Board may not leave undeveloped matters which its acquired specialized knowledge should identify as requiring further evidence].) We also conclude that the WCJ must include room and board in determining applicant's earnings, pursuant to Labor Code section 4454. This is further discussed below.
The WCJ's tentative 76% permanent disability rating is rescinded and deferred pending further development of the medical record and new decision by the WCJ, to avoid confusion and premature litigation.
From the decision · page 2In addition, the WCJ found that applicant's "current and tentative" permanent disability rating is 76% based upon Dr. Masserman's permanent and stationary report, which found applicant restricted to sedentary work with the need to use a cane, and that this rating is subject to an increase pending further development of the record "on multiple issues" in reference to the reporting of Dr. Woolf, the Agreed Medical Evaluator ("AME") in internal medicine, with the WCJ adding that this "means applicant will be entitled to a life pension."
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's average weekly earnings were not properly determined, including failure to specify method and to include room and board as remuneration.
Favours Applicant prevailed
This led to deferral of the average weekly earnings issue for further proceedings to properly determine AWW.
From the decision · page 6We conclude that the WCJ must revisit the issue of average weekly earnings and specify which provisions of section 4453(c) she wishes to rely upon to determine the issue, including, as appropriate, case law relevant to the four methods of determining the issue described in subdivision (c). If the WCJ finds it appropriate to consider applicant's earning capacity pursuant to subparagraph (4) of section 4453(c), she should further develop the record as deemed necessary to determine that issue. (Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1164 (66 Cal.Comp.Cases 1290) [Board may not leave undeveloped matters which its acquired specialized knowledge should identify as requiring further evidence].) We also conclude that the WCJ must include room and board in determining applicant's earnings, pursuant to Labor Code section 4454. This is further discussed below.
The WCJ's tentative 76% permanent disability rating was premature and based on incomplete medical record, requiring further development and new decision.
Favours Applicant prevailed
This led to rescission and deferral of the permanent disability rating issue to avoid confusion and premature litigation.
From the decision · page 2In addition, the WCJ found that applicant's "current and tentative" permanent disability rating is 76% based upon Dr. Masserman's permanent and stationary report, which found applicant restricted to sedentary work with the need to use a cane, and that this rating is subject to an increase pending further development of the record "on multiple issues" in reference to the reporting of Dr. Woolf, the Agreed Medical Evaluator ("AME") in internal medicine, with the WCJ adding that this "means applicant will be entitled to a life pension."
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Provided a permanent and stationary report with a 76% permanent disability rating, restricting applicant to sedentary work with the need to use a cane.
From the decision · page 2In addition, the WCJ found that applicant's "current and tentative" permanent disability rating is 76% based upon Dr. Masserman's permanent and stationary report, which found applicant restricted to sedentary work with the need to use a cane, and that this rating is subject to an increase pending further development of the record "on multiple issues" in reference to the reporting of Dr. Woolf, the Agreed Medical Evaluator ("AME") in internal medicine, with the WCJ adding that this "means applicant will be entitled to a life pension."
AME whose medical opinion requires further development regarding permanent disability, causation, and apportionment of internal disability.
From the decision · page 2In addition, the WCJ found that applicant's "current and tentative" permanent disability rating is 76% based upon Dr. Masserman's permanent and stationary report, which found applicant restricted to sedentary work with the need to use a cane, and that this rating is subject to an increase pending further development of the record "on multiple issues" in reference to the reporting of Dr. Woolf, the Agreed Medical Evaluator ("AME") in internal medicine, with the WCJ adding that this "means applicant will be entitled to a life pension."
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code and case law
Labor Code section 4056 and Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 regarding permanent disability rating and apportionment.
Permanent disability rating deferred pending further development; apportionment findings not disturbed.
From the decision · page 2The WCJ also found that defendant is not entitled to a Labor Code Section 4056 reduction of permanent disability, and that defendant has not established a valid basis for apportionment of applicant's orthopedic disability, with the "internal aspect" deferred pending development of the record in the reporting of Dr. Woolf. The WCJ specifically ordered the "parties [to] develop the record via AME Dr. Woolf as to permanent disability, causation, and apportionment, per the [WCJ's] Opinion on Decision."
California Labor Code
Labor Code section 4453(c) and 4454 regarding determination of average weekly earnings including room and board as remuneration.
WCJ must specify method and include room and board in AWW determination.
From the decision · page 6We conclude that the WCJ must revisit the issue of average weekly earnings and specify which provisions of section 4453(c) she wishes to rely upon to determine the issue, including, as appropriate, case law relevant to the four methods of determining the issue described in subdivision (c). If the WCJ finds it appropriate to consider applicant's earning capacity pursuant to subparagraph (4) of section 4453(c), she should further develop the record as deemed necessary to determine that issue. (Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1164 (66 Cal.Comp.Cases 1290) [Board may not leave undeveloped matters which its acquired specialized knowledge should identify as requiring further evidence].) We also conclude that the WCJ must include room and board in determining applicant's earnings, pursuant to Labor Code section 4454. This is further discussed below.
What proof carried it
The evidence the panel weighed, by kind.
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
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.
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