ADJ9532885 — California WCAB decision

What the panel ordered

Findings of Fact and Award affirmed except issue of average weekly earnings deferred; matter returned to trial level for further proceedings

Petition for reconsideration of Findings of Fact and Award issued on February 22, 2019; WCAB affirms except defers issue of average weekly earnings and returns matter for further proceedings

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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 earningsDefendant prevailed

The WCJ's calculation of average weekly earnings did not consider applicant's prior earnings from other employments, and the record was insufficient to establish a reasonable and fair calculation; thus, the issue was deferred for further proceedings.

From the decision · page 13We next address UEBTF's contention that the WCJ erred by calculating applicant's AWE without accounting for earnings he may have received prior to his employment by Groth. In this regard, we observe that section 4453(c) provides four methods for calculating average weekly earnings for the purpose of determining temporary and permanent disability indemnity. (§ 4453(c)(1)-(4).) Section 4453(c) provides, in pertinent part, as follows:

Other disputed issue

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant was injured while driving an ATV on employer's premises at the employer's request during work hours

Favours Applicant prevailed

This established injury arose out of and in the course of employment

From the decision · page 4THE COURT: You still had the minor child with you? THE WITNESS: Correct.... Q. BY MS. RANDMAA: Was this still in the middle of your workday? A. Yes.... Q. Okay. And then what happened? A. Then when I was about to reach the last part of the bluff, going up the hill, I ask the child to disembark. I thought it was not safe for him to stay on the ATV. So he run up the bluff as I asked him, and I drove the ATV up the hill. (Id., pp. 67:6-68:5.)

Applicant's testimony was credible and consistent, while defendant's witnesses were not credible

Favours Applicant prevailed

Credibility determinations supported finding injury AOE/COE

Record lacked sufficient evidence to fairly calculate applicant's average weekly earnings including prior employments

Favours Defendant prevailed

Required deferral of AWE issue for further proceedings

WCJ's questioning of defendant witness to clarify contradictory testimony did not show bias or prejudice

Favours Defendant prevailed

Rejected due process violation claim

From the decision · page 15Without citing supporting authority or asserting how the WCJ's conduct could have caused her prejudice, Groth argues that the WCJ asked questions of her at trial as though he were an advocate for applicant. The record shows that the WCJ asked Groth questions regarding an apparent contradiction in her testimony: how she could testify on one hand that applicant's duties were confined to the residential area of her property and on the other that she instructed him to store materials at a nearby property. (See Transcript of Proceedings, December 19, 2018, pp. 47:7- 49:8.) However, these questions do not suggest that the WCJ deviated from his role of finder of fact and we are unpersuaded that Groth was deprived of a fair hearing.

The rules the panel named

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

Labor Code section 3600

Injury must arise out of and in the course of employment to impose employer liability

Applied to determine compensability of injury

From the decision · page 8Notwithstanding the above, section 3600 imposes liability on an employer for workers' compensation benefits only if its employee sustains an injury "arising out of and in the course of employment." An employer is liable for workers' compensation benefits, where, at the time of the injury, an employee is "performing service growing out of and incidental to his or her employment and is acting within the course of employment." (§ 3600(a)(2).) The determination of whether an injury arises out of and in the course of employment requires a two-prong analysis. (LaTourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644 [63 Cal.Comp.Cases 253].)

Labor Code section 4453(c)

Calculation of average weekly earnings must consider all sources of earnings and be reasonable and fair

Applied to defer AWE calculation for further record development

From the decision · page 13We next address UEBTF's contention that the WCJ erred by calculating applicant's AWE without accounting for earnings he may have received prior to his employment by Groth. In this regard, we observe that section 4453(c) provides four methods for calculating average weekly earnings for the purpose of determining temporary and permanent disability indemnity. (§ 4453(c)(1)-(4).) Section 4453(c) provides, in pertinent part, as follows:

Taylor v. Industrial Acc. Com. (1940) 38 Cal.App.2d 75

WCJ questioning witnesses to clarify contradictory testimony does not violate due process absent prejudice

Applied to reject due process violation claim

From the decision · page 15Without citing supporting authority or asserting how the WCJ's conduct could have caused her prejudice, Groth argues that the WCJ asked questions of her at trial as though he were an advocate for applicant. The record shows that the WCJ asked Groth questions regarding an apparent contradiction in her testimony: how she could testify on one hand that applicant's duties were confined to the residential area of her property and on the other that she instructed him to store materials at a nearby property. (See Transcript of Proceedings, December 19, 2018, pp. 47:7- 49:8.) However, these questions do not suggest that the WCJ deviated from his role of finder of fact and we are unpersuaded that Groth was deprived of a fair hearing.

ADJ9532885 · October 13, 2021

What the panel ordered

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