What the panel ordered
Petition for reconsideration granted; July 30, 2024 Second Amended Findings and Award affirmed except that issues of earnings, temporary disability indemnity, and medical mileage reimbursement are deferred; no awards at this time.
Defendants petitioned for reconsideration of the July 30, 2024 Second Amended Findings and Award, challenging earnings, temporary disability, and mileage reimbursement issues; the WCAB granted reconsideration and deferred these issues for further resolution.
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.
Medical mileage reimbursement was deferred pending further evidence, despite the allowance of mileage for travel from Texas to California for treatment due to lack of medical control by defendants.
From the decision · page 12dated March 21, 2022, p. 8:8-9), we will allow an award of medical mileage from applicant's home to the place of examination and back. (§ 4600(c)(2).) However, applicant must support her claim of medical mileage through contemporaneous medical records or any other evidence showing that the mileage was incurred for medical treatment. (§ 4600(c)(2); 5705.) We also echo the WCJ's urging that applicant "attempt to find a more pragmatic solution to treatment needs that does not involve travel between Texas and California. Interstate travel is difficult and wasteful, and would not under normal circumstances be considered a reasonable solution, and is permitted in this case only retrospectively." (Opinion on Decision, p. 23.)
Temporary disability indemnity was deferred pending resolution of the earnings issue, as the indemnity rate depends on average weekly earnings.
From the decision · page 11Here, EDD provided benefits from February 9, 2020 to September 4, 2021 (Defendant's Exhibit UU), which is after applicant's temporary disability dates of April 20, 2016 to October 2, 2017 and May 15, 2018 to August 29, 2019. We agree with the WCJ that applicant's EDD benefits were not paid for the same days of applicant's temporary disability and, therefore, there is no credit for payments made by EDD or for payments defendant made to satisfy EDD's lien. However, because temporary disability indemnity is taken at two-thirds of the average weekly earnings, we defer the issue of temporary disability pending resolution of the earnings issue. (§ 4653.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's Exhibit 9 showed significant self-employment income from hairdressing services before injury, supporting a higher earnings capacity.
Favours Applicant prevailed
This evidence was used to challenge the previously found average weekly earnings and support deferral for further resolution.
Testimony showed no dual employment with Walmart and SMX at the same time, undermining the basis for combining earnings from both employers.
Favours Defendant prevailed
This undermined the basis for the previously found higher earnings rate, supporting deferral of the earnings issue.
From the decision · page 9608.) Applicant testified at trial that the reason she did not continue to work for SMX past January 2016 was because SMX lost their contract with Amazon and they could not employ her any longer. (MOHSOE dated March 21, 2022 at p. 8:20-22.) Thus, it does not appear that applicant had dual employment with Walmart and SMX at the same time to justify adding these two earnings to determine applicant's average weekly earnings. Even if adding these two earnings was proper as a snapshot of applicant's total earnings during this time period, applicant testified that there was no more work for her at SMX because SMX lost its contract with Amazon, thereby questioning whether this amount of earning is a good predictor for applicant's loss of earning capacity.
Applicant's testimony that medical providers in Texas would not treat her due to the age of the claim justified medical mileage from Texas to California.
Favours Applicant prevailed
Supported allowance of medical mileage reimbursement despite the unusual travel distance, pending further evidence.
From the decision · page 11On its face, traveling from Texas to California multiple times for purposes of medical treatment, racking high medical mileage, seems unreasonable. However, given applicant's testimony that medical providers in Texas would not treat her because of the age of her industrial claim (MOHSOE dated March 21, 2022, p. 5:6-6:12) and in light of the WCJ's reasoning that defendants failed to take medical control by petitioning for a change in applicant's primary treating physician and applicant's reliance that defendants would pay for medical mileage (MOHSOE
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Agreed Medical Evaluator whose report was hoped to lead to a global settlement on earnings, temporary disability, and mileage issues.
Primary Treating Physician at the time of injury.
From the decision · page 3On October 18, 2021, the first trial date on the issues decided herein, the parties stipulated that the applicant, while employed on March 29, 2016 (at 42 years of age), as a modular team worker, at Lancaster, California, by Wal-Mart, sustained injury arising out of and in the course of employment to her right wrist, and at the time of injury, the employer's workers' compensation carrier was ACE American Insurance Company. The parties further stipulated that the employer has furnished some medical treatment, and that the primary treating physician is Dr. Ron Goldstein (Minutes of Hearing and Summary of Evidence 10/18/2021, p. 2, numbered lines 5-10). Those stipulations are included in this decision as Findings of Fact 1, 2, and 3.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code Section 4453(c)(4)
Used to assess the proper calculation of average weekly earnings for temporary disability indemnity.
From the decision · page 7Nor in making a permanent disability award would it be consistent with the purpose of the statute to base a finding of maximum earning capacity solely on a high wage, ignoring irregular employment and low income over a long period of time. An estimate of earning capacity is a prediction of what an employee's earnings would have been had he not been injured. Earning capacity, for the purposes of a temporary award, however, may differ from earning capacity for the purposes of a permanent award. In the former case the prediction of earnings need only be made for the duration of the temporary disability. In the latter the prediction is more complex because the compensation is for loss of earning power over a long span of time. Thus an applicant's earning capacity could be maximum for a temporary award and minimum for a permanent award or the reverse. Evidence sufficient to sustain a maximum temporary award might not sustain a maximum permanent award. In making an award for temporary disability,
Labor Code Section 4653
Temporary disability indemnity is calculated at two-thirds of average weekly earnings, with credits for EDD benefits considered if overlapping.
Applied to defer temporary disability indemnity pending earnings resolution.
From the decision · page 11Here, EDD provided benefits from February 9, 2020 to September 4, 2021 (Defendant's Exhibit UU), which is after applicant's temporary disability dates of April 20, 2016 to October 2, 2017 and May 15, 2018 to August 29, 2019. We agree with the WCJ that applicant's EDD benefits were not paid for the same days of applicant's temporary disability and, therefore, there is no credit for payments made by EDD or for payments defendant made to satisfy EDD's lien. However, because temporary disability indemnity is taken at two-thirds of the average weekly earnings, we defer the issue of temporary disability pending resolution of the earnings issue. (§ 4653.)
Labor Code Sections 4600(c)(2), 5705
Medical mileage reimbursement requires contemporaneous medical records or other evidence showing mileage was incurred for treatment, per Labor Code Sections 4600(c)(2) and 5705.
Applied to defer medical mileage reimbursement pending further evidence.
From the decision · page 12dated March 21, 2022, p. 8:8-9), we will allow an award of medical mileage from applicant's home to the place of examination and back. (§ 4600(c)(2).) However, applicant must support her claim of medical mileage through contemporaneous medical records or any other evidence showing that the mileage was incurred for medical treatment. (§ 4600(c)(2); 5705.) We also echo the WCJ's urging that applicant "attempt to find a more pragmatic solution to treatment needs that does not involve travel between Texas and California. Interstate travel is difficult and wasteful, and would not under normal circumstances be considered a reasonable solution, and is permitted in this case only retrospectively." (Opinion on Decision, p. 23.)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's Exhibit 9 showing significant self-employment income from hairdressing services during the 120 days before injury, supporting a higher earnings capacity.
Testimony and evidence showing no dual employment with Walmart and SMX at the same time, undermining the basis for combining earnings from both employers.
From the decision · page 9608.) Applicant testified at trial that the reason she did not continue to work for SMX past January 2016 was because SMX lost their contract with Amazon and they could not employ her any longer. (MOHSOE dated March 21, 2022 at p. 8:20-22.) Thus, it does not appear that applicant had dual employment with Walmart and SMX at the same time to justify adding these two earnings to determine applicant's average weekly earnings. Even if adding these two earnings was proper as a snapshot of applicant's total earnings during this time period, applicant testified that there was no more work for her at SMX because SMX lost its contract with Amazon, thereby questioning whether this amount of earning is a good predictor for applicant's loss of earning capacity.
Applicant's testimony that medical providers in Texas would not treat her due to the age of the claim, justifying medical mileage from Texas to California.
From the decision · page 11On its face, traveling from Texas to California multiple times for purposes of medical treatment, racking high medical mileage, seems unreasonable. However, given applicant's testimony that medical providers in Texas would not treat her because of the age of her industrial claim (MOHSOE dated March 21, 2022, p. 5:6-6:12) and in light of the WCJ's reasoning that defendants failed to take medical control by petitioning for a change in applicant's primary treating physician and applicant's reliance that defendants would pay for medical mileage (MOHSOE
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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