California WCABPanel decision

ADJ10024395 · October 11, 2021

Petition for Reconsideration granted in part on average weekly wage issue and remanded for further development; denied on causation record development issue; WCJ decision otherwise affirmed

Issues decided: 2
Medical opinions weighed: 2
Authorities named: 3
District office: Santa Ana

What the panel ordered

Petition for Reconsideration granted in part on average weekly wage issue and remanded for further development; denied on causation record development issue; WCJ decision otherwise affirmed

Petition for Reconsideration granted in part to defer average weekly wage issue for further development; otherwise WCJ decision affirmed

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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 earningsRemanded

The WCJ's calculation of average weekly wage was found unsupported by evidence due to incomplete wage records; issue deferred for further development.

Medical treatment / UR / IMRApplicant prevailedheadaches · neurological with dizziness and vertigo · internal with gastrointestinal issues · hypertension · weight gain

The WCJ found the panel QME's opinions deficient and ordered further development of the medical record on causation; this was upheld on reconsideration.

From the decision · page 9

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The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Cal. Lab. Code 4453(c)(1)

Average weekly wages are calculated by multiplying the number of days worked per week by the average daily wage, with adjustments for monthly pay periods.

Applied to determine that the wage calculation needed further development due to incomplete wage records.

From the decision · page 2In general, average weekly wages are calculated by multiplying the number of days worked per week by the average daily wage. (Cal. Lab., Code § 4453(c)(1).) In this case, applicant was paid monthly. Typically, determining an average weekly wage based on a monthly paystub requires that the sum of applicant's wages be divided by the number days in the months included in the wage statement. The daily rate should be multiplied by 7. If special circumstances apply that would cause this approach to be inaccurate, the special circumstances should be documented and another approach may be used. Therefore, as recommended by the WCJ in his Report, we will grant reconsideration and defer the issue of applicant's average weekly wage.

Cal. Lab. Code 5502(d)(3)

Discovery closes at Mandatory Settlement Conference; evidence not disclosed after is inadmissible unless due diligence shows it was unavailable.

Defendant argued this barred further record development; WCJ found it does not bar development when necessary for substantial justice.

From the decision · page 7Development of the Record The defendant asserts three basis for its assertion that the undersigned Judge exceeded his authority in ordering development of the record on the issue of causation of the applicant's internal claims. The first is that California Labor Code § 5502(d)(3) is bar to the record being developed on the issue of causation; second that the record does not support the use of California Labor Code sections 5701 and 5906 to develop the records; and third that the medical evidence produced is substantial and does not require development. California Labor Code § 5502(d)(3) provides that "discovery shall close on the date of the Mandatory Settlement Conference. Evidence not disclosed or obtained after that shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the conference." The defendant further asserts that the applicant's attorney did not arrange for cross- examination of panel internal medicine Dr. Sachs, so none was ever conducted. The defendant states that the applicant should not now be allowed to use the Trial Judge's discretion to develop the record to obtain evidence.

WCJ and WCAB may obtain additional evidence at any time during proceedings under Cal. Lab. Code 5701 and 5906.

Supported WCJ's authority to order further development of medical record.

From the decision · page 8The Court of Appeals in the matter of Tyler v. Workers' Comp. Appeals Bd., 56 Cal. App. 4th 389 found that California Labor Code sections 5701 and 5906 authorize the WCJ and WCAB to obtain additional evidence, including medical, at any time during the proceedings.

ADJ10024395 · October 11, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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