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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. ADJ7673518, ADJ7647749
Regular
Jan 23, 2015

ANA DE AYALA vs. AO-THE UNIVERSITY CORPORATION / CALIFORNIA STATE UNIVERSITY NORTHRIDGE

The Workers' Compensation Appeals Board granted reconsideration and reversed a prior ruling, finding the applicant sustained industrial injury to her neck. While the applicant testified to injuring her neck in a workplace incident and this was partially corroborated, the Board found insufficient evidence for other claimed injuries. The Board specifically disagreed with the administrative law judge's credibility assessment concerning the neck injury itself, relying on medical reports and testimony supporting the neck injury claim. The Board affirmed the denial of claims for all other alleged injuries, finding insufficient medical evidence to link them to the incident.

Petition for ReconsiderationFindings and OrderIndustrial InjuryNeck InjuryBack InjurySpine InjuryUpper ExtremitiesPsycheGastroesophageal SystemInternal System
References
Case No. ADJ896199
Regular
Apr 30, 2010

CHRISTOPHER SAN JOSE vs. STAGE TECH, STATE COMPENSATION INSURANCE FUND

This case concerns a dispute over the applicant's temporary disability indemnity rate, which was initially based solely on Social Security earnings. The Appeals Board granted reconsideration, finding the WCJ erred by not considering the applicant's actual post-injury earnings in a modified position. The Board cited case law establishing that post-injury earnings can be considered to fairly determine an injured worker's earning capacity. Consequently, the applicant's weekly earnings were determined to be $450, resulting in a higher temporary disability indemnity rate.

ReconsiderationTemporary Disability Indemnity RateEarning CapacitySocial Security RecordsModified DutyOffer of ProofAbandoned His JobPre-injury EarningsPost-injury EarningsEarning Capacity Determination
References
Case No. FRE 0147567
Significant
Jan 24, 2002

MARIA YOLANDA JIMENEZ vs. SAN JOAQUIN VALLEY LABOR, SUPERIOR NATIONAL INSURANCE COMPANY

The Board holds that an industrially injured seasonal employee's vocational rehabilitation maintenance allowance (VRMA) should be calculated at two-tiered rates, reflecting in-season and off-season earning capacity, similar to temporary disability indemnity. The case is remanded to determine the applicant's off-season earning capacity.

Seasonal farm laborerVocational Rehabilitation Maintenance Allowance (VRMA)Temporary Disability Indemnity (TDI)In-season earnings capacityOff-season earnings capacityAverage weekly earningsLabor Code section 139.5En banc decisionEarning capacity benchmarkTwo-tiered award
References
Case No. ADJ8517780
Regular
Jun 03, 2013

DEANNA ROBBINS vs. SUSANVILLE ELEMENTARY SCHOOL DISTRICT

The Workers' Compensation Appeals Board denied the defendant school district's petition for reconsideration. The district challenged the calculation of the applicant's average weekly earnings, arguing her probationary status should reduce the figure. However, the Board affirmed the administrative law judge's finding, determining that the applicant's earnings capacity was properly calculated based on her actual earnings from multiple employers prior to the injury. The Board emphasized that earning capacity is a dynamic assessment, not limited to the applicant's immediate employment status.

Workers' Compensation Appeals BoardSusanville Elementary School DistrictDeanna RobbinsPetition for ReconsiderationFindings and Awardcumulative injuryupper extremitiesaverage weekly earningsearning capacityLabor Code section 4453(c)(4)
References
Case No. ADJ4318563 (SAL 0103841)
Regular
Nov 03, 2010

SANDRA PETERSON vs. SANTA CRUZ CITY SCHOOLS; Permissibly Self-Insured, Administered By EMPLOYERS SLEF INSURANCE SERVICES

This case involves an applicant who sustained industrial injuries as a teacher and later earned a significantly higher salary at a different school district. The Workers' Compensation Appeals Board denied the defendant's petition for reconsideration. The Board affirmed the administrative law judge's decision to base temporary disability indemnity on the applicant's higher post-injury earnings. This was justified because her subsequent earnings provided concrete evidence of her earning capacity.

Workers' Compensation Appeals BoardIndustrial InjuryTemporary Total Disability IndemnityTDI Rate CalculationPost-Injury EarningsEarning CapacityWCJ FindingsPetition for ReconsiderationSanta Cruz City SchoolsCampbell School District
References
Case No. ADJ8072993
Regular
Nov 26, 2012

VIRGINIA PALACIOS vs. MAXIMUM REALTY, AMERICAN CLAIMS

The Workers' Compensation Appeals Board denied reconsideration of the applicant's earning capacity determination. The Administrative Law Judge (WCJ) found the applicant's earning capacity based on actual wages, including rent-free housing as compensation, not solely on an hourly minimum wage calculation. The WCJ emphasized that earning capacity considers various factors like age, skill, and employment opportunities, not just hours worked at minimum wage. The Board noted that minimum wage issues should be addressed in a different forum and that such adjudication could potentially lead to reopening this case within statutory timeframes.

Workers' Compensation Appeals BoardPetition for ReconsiderationDeniedEarning CapacityMinimum WageApartment ManagerActual EarningsLegal Minimum WageStatutory Time FramesAdjudication
References
Case No. ADJ9064752
Regular
May 12, 2016

SANTOS MARTINEZ vs. TROON GOLF, INC., dba MARIN COUNTRY CLUB, UNITED STATES FIRE INSURANCE COMPANY

This case concerns a dispute over temporary disability indemnity rate calculations following an admitted industrial back, lower extremity, and wrist injury. The employer challenged the administrative law judge's (WCJ) finding of an average weekly earning capacity of \$648.00, arguing insufficient evidence of increased earning potential. The Workers' Compensation Appeals Board affirmed the WCJ's decision, holding that earning capacity is a dynamic assessment considering overall capability, not just actual earnings at the time of injury. The Board cited the applicant's acceptance of a full-time position at a higher wage rate as strong evidence supporting the determined earning capacity.

Earning capacityLabor Code section 4453(c)(4)Average weekly earning capacityTemporary disability indemnityPetition for ReconsiderationFindings and AwardGoytiaMontanaKyllonenGrossmont Hospital
References
Case No. ADJ2079252
Regular
Jan 25, 2010

JON SHINI vs. PACIFIC COAST AUTO BODY & TRUCK, FARMERS SANTA ANA

The Workers' Compensation Appeals Board (WCAB) granted reconsideration and rescinded the prior award due to the administrative law judge's (WCJ) failure to fully analyze the issues presented in *Ogilvie I* and *Ogilvie II*. Specifically, the WCJ improperly applied the diminished future earning capacity (DFEC) rebuttal formula without sufficient evidentiary development regarding the applicant's post-injury earnings and potential for malingering. The Board remanded the case for further proceedings to conduct a complete *Ogilvie* analysis, including weighing the scheduled rating against the adjusted DFEC factor and considering factors such as the applicant's credibility. The defendant's contention regarding industrial injury to the psyche was not addressed, with the Board allowing it to be raised in further proceedings.

OgilvieDiminished Future Earning CapacityDFECReconsiderationRebuttalPermanent Disability Rating SchedulePost-injury earningsEarning capacityAgreed Medical EvaluatorMalingering
References
Case No. ADJ6721939
Regular
Mar 01, 2010

BERTHA NORIEGA GARCIA vs. PATRICK L. HINRICHSEN, CIVIL SERVICE EMPLOYEES INSURANCE COMPANY

This case is remanded for further proceedings because the Administrative Law Judge (ALJ) did not fully analyze the Diminished Future Earning Capacity (DFEC) adjustment factor under the *Ogilvie* decisions. The ALJ improperly relied solely on applicant's testimony for lost earnings without a proper *Ogilvie* analysis, including the duration of post-injury earnings and consideration of other factors affecting earning capacity. The ALJ must conduct a complete *Ogilvie* analysis, weigh the evidence, and explain how the adjusted DFEC factor reflects the applicant's actual earning capacity compared to the scheduled rating. The Board also clarified that temporary disability indemnity is not to be treated as post-injury earnings.

Diminished Future Earning CapacityDFECOgilvie analysisRebuttalScheduled Permanent Disability RatingPost-injury earningsEarnings lossTemporary disability indemnityPermanent and stationary dateTriers-of-fact
References
Case No. FRE 0238073
Regular
Jan 25, 2008

DANIEL MALTOS vs. ULTIMATE STAFFING SERVICES, ZURICH AMERICAN INSURANCE COMPANY, NOVAPRO RISK SOLUTIONS INC.

The Workers' Compensation Appeals Board granted reconsideration of an award finding the applicant's average weekly earnings at $390.00. The Board amended the award to find average weekly earnings of $320.00, resulting in a temporary disability indemnity rate of $213.33 per week. This adjustment was made because the original calculation of $390.00 was not adequately supported by the evidence, though the Board affirmed the applicability of Labor Code section 4453(c)(1) for determining earnings.

Petition for ReconsiderationFindings and Awardtemporary disability indemnityaverage weekly earningsLabor Code section 4453(c)(1)Labor Code section 4453(c)(4)wage lossearning capacityprobationary periodintermittent employment
References
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