ADJ10253709 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by Defendant was denied by the WCAB panel after review of the WCJ report and record.

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 Court used the method proposed by Petitioner based on total earnings over actual weeks worked, excluding weeks with no earnings, consistent with Labor Code section 4453(c)(3).

From the decision · page 6The method specified for calculating wages applies here because Applicant was paid at an irregular rate since he was paid by the piece. Thus the use of average pay over a period of time is appropriate. In that regard, the Court agrees with Petitioner and in fact the Court utilized the method proposed by Petitioner. The Court did not use section 4453(c)(1) to make the determination as seemingly implied by Petitioner because that section does not apply to the situation where earnings are based on piece work.

The facts that decided it

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

What proof carried it

The evidence the panel weighed, by kind.

Documentary evidencefavours Applicant prevailed

Applicant's 2015 tax return showing earnings attributed to Carlos the applicant were reported as Applicant's own.

From the decision · page 8Although not specifically raised as an issue in the Petition other than to argue that the determination was not sufficiently explained, the Court utilized the payment calculation sheets for Applicant and Carlos the applicant because the 2015 tax return confirmed that Applicant reported the earnings of Carlos the applicant as his own. The tax return was considered because it tends to corroborate Applicant's testimony regarding the nature of the earnings. The payment calculation sheets also tend to corroborate Applicant's testimony since payments by the employer just happened to cease at the time of Applicant's injury. It also did not go unnoticed that the payment calculation sheet for Carlos the applicant that was included in the subpoenaed records of the employer include a notation at top of the document of a date of injury of 9/21/15. The version of that same document submitted by Defendant had the reference to the date of injury removed.

Testimony and credibilityfavours Applicant prevailed

Testimony of Rigoberto Melo confirming Applicant did not work with an assistant, undermining the claim that Carlos the applicant worked for the company.

From the decision · page 8Thus it appears that there was an attempt to conceal the fact that the employer may have acknowledged that for purposes of earnings, Applicant and Carlos the applicant were one and the same. Another factor in considering these aforementioned documents was the testimony of Rigoberto Melo who confirmed that Applicant did not work with an assistant. That testimony tends to vitiate the testimonial opinion of Benjamin Rodriguez that Carlos the applicant worked for the company because Applicant had a helper. It is also noted that the employment application that Benjamin Rodriguez Jr. cited as a reason for his opinion that Carlos the applicant worked for the employer, was not completed or signed. Thus, when considering all of the above factors, the Court determined that the reported earnings of Carlos the applicant were actually the earnings of Applicant.

ADJ10253709 · April 8, 2024

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

What proof carried it

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