ADJ17538139 · December 26, 2025

The record was insufficient to conclusively determine applicant's full-time status and earnings history; the matter was returned for further development of the record on earning capacity.

From the decision · page 8In light of the scant evidentiary record, combined with the errors in the Opinion on Decision (see Report, p. 2, fn. 2.), we return this matter to the trial level to develop the record on all the factors that would be relevant in determining applicant's earning capacity. (Lab. Code, § 5701,

These issues were not tried and no findings were made; therefore, they are not ripe for reconsideration.

From the decision · page 9To the extent that applicant seeks penalties or alleges bad faith on defendant's part, these were not issues at trial and the WCJ made no findings on these issues. Therefore, these are not ripe for reconsideration.

Applicant testified he was hired to be a full-time employee working 40 hours per week but also testified that some days no work was available.

Favours Applicant prevailed

This testimony created uncertainty about applicant's full-time status, requiring further record development.

From the decision · page 7Applicant testified that he was hired to be a full-time employee, that he was hired to work 40 hours per week from 7:30 to 3:30. (MOH/SOE, at p. 3.) However, applicant also testified that there were certain days when he called in for work where no work was available. (Id.) Applicant contends that he was "dispatched by the union not a temp agency and there are no documents supporting their claim that I was part-time or on call." Applicant is correct that there are no documents admitted into the evidence which conclusively show that he was part-time. However, there are also no documents admitted into the evidence which conclusively show that applicant was full-time.

No conclusive documentary evidence was admitted to prove applicant's full-time or part-time status.

Favours neutral

Lack of documentary evidence prevented a conclusive finding on average weekly earnings calculation.

From the decision · page 7Applicant testified that he was hired to be a full-time employee, that he was hired to work 40 hours per week from 7:30 to 3:30. (MOH/SOE, at p. 3.) However, applicant also testified that there were certain days when he called in for work where no work was available. (Id.) Applicant contends that he was "dispatched by the union not a temp agency and there are no documents supporting their claim that I was part-time or on call." Applicant is correct that there are no documents admitted into the evidence which conclusively show that he was part-time. However, there are also no documents admitted into the evidence which conclusively show that applicant was full-time.

Wage statements and check activity showed irregular hours and weeks with zero hours worked.

Favours neutral

This evidence indicated irregular employment, complicating the calculation of average weekly earnings.

From the decision · page 8A wage statement worksheet (Exhibit 4 and Exhibit B) and check activity (Exhibit C) show a broad range of hours worked in different timeframes, including several weeks with zero hours worked. There is a Notice of Lien Claim stating that applicant began receiving State Disability Insurance benefits (also known as Unemployment Compensation Disability (UCO) benefits) on March 13, 2023, for a January 31, 2023, date of injury (Exhibit D), however there is no evidence in the record regarding unemployment benefits, or earnings from any other employment before applicant started working for defendant.

Evidence of post-injury earnings through March 4, 2023, was not considered by the WCJ.

Favours Applicant prevailed

This omission warranted returning the matter for further proceedings to fully develop the record.

From the decision · page 8There is evidence of post-injury earnings through March 4, 2023 (Exhibit C, pp. 7-9), which it does not appear that the WCJ considered. We also note that the fact that applicant called in each day to find out whether and where he would be working is not itself evidence that he was less than a full-time employee.

Labor Code section 4453(c)

Calculation of average weekly earnings under Labor Code section 4453(c)

The Board reviewed the statutory provisions governing average weekly earnings calculation for temporary disability indemnity.

From the decision · page 5II. Section 4453, subdivision (c), governs the calculation of average weekly earnings for the

Lab. Code, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627

Substantial evidence required to support WCJ's decision

The WCJ's decision must be supported by substantial evidence, which was lacking in this case regarding full-time status and earnings.

From the decision · page 7A WCJ's decision must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].)

Evidence of post-injury earnings through March 4, 2023, not considered by WCJ

From the decision · page 8There is evidence of post-injury earnings through March 4, 2023 (Exhibit C, pp. 7-9), which it does not appear that the WCJ considered. We also note that the fact that applicant called in each day to find out whether and where he would be working is not itself evidence that he was less than a full-time employee.

Applicant's testimony about full-time employment and hours worked, including days with no work available

From the decision · page 7Applicant testified that he was hired to be a full-time employee, that he was hired to work 40 hours per week from 7:30 to 3:30. (MOH/SOE, at p. 3.) However, applicant also testified that there were certain days when he called in for work where no work was available. (Id.) Applicant contends that he was "dispatched by the union not a temp agency and there are no documents supporting their claim that I was part-time or on call." Applicant is correct that there are no documents admitted into the evidence which conclusively show that he was part-time. However, there are also no documents admitted into the evidence which conclusively show that applicant was full-time.

Lack of conclusive documentary evidence on applicant's full-time or part-time status

From the decision · page 7Applicant testified that he was hired to be a full-time employee, that he was hired to work 40 hours per week from 7:30 to 3:30. (MOH/SOE, at p. 3.) However, applicant also testified that there were certain days when he called in for work where no work was available. (Id.) Applicant contends that he was "dispatched by the union not a temp agency and there are no documents supporting their claim that I was part-time or on call." Applicant is correct that there are no documents admitted into the evidence which conclusively show that he was part-time. However, there are also no documents admitted into the evidence which conclusively show that applicant was full-time.

Wage statement and check activity showing irregular hours and weeks with zero hours worked

From the decision · page 8A wage statement worksheet (Exhibit 4 and Exhibit B) and check activity (Exhibit C) show a broad range of hours worked in different timeframes, including several weeks with zero hours worked. There is a Notice of Lien Claim stating that applicant began receiving State Disability Insurance benefits (also known as Unemployment Compensation Disability (UCO) benefits) on March 13, 2023, for a January 31, 2023, date of injury (Exhibit D), however there is no evidence in the record regarding unemployment benefits, or earnings from any other employment before applicant started working for defendant.