What the panel ordered
The WCAB granted the petition for reconsideration, amended the prior Findings, Award and Orders to defer issues of average weekly wage, temporary disability, and Labor Code section 5814 penalties for further proceedings, and ordered replacement and additional QME panels in orthopedics and psychiatry respectively.
Defendant Hudson Insurance Company sought reconsideration of the WCJ's Findings, Award and Orders dated July 14, 2025, challenging findings on average weekly wage, temporary disability, and Labor Code section 5814 penalties. The WCJ filed a Report and Recommendation conceding error on the temporary disability period. The WCAB granted reconsideration, deferred issues of average weekly wage, temporary disability, and penalties for further analysis, and denied relief on the additional QME panel in psychiatry.
This docket was decided more than once. Shown here is the latest released decision; we also hold November 18, 2022.
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.
The WCAB denied relief on the challenge to the additional psychiatry QME panel and ordered replacement and additional QME panels in orthopedics and psychiatry respectively.
The issue of average weekly wage was deferred for further analysis and explanation by the WCJ as required by Labor Code section 4453(c).
From the decision · page 52. The issue of average weekly earnings is deferred, with jurisdiction deferred.
The issue of temporary disability was deferred to include the intervening period of temporary partial disability and for reanalysis of the periods and amounts owed.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ conceded error that the 104 weeks of temporary disability should include the intervening period of temporary partial disability.
Favours Applicant prevailed
This concession led to the grant of reconsideration and deferral of temporary disability issues for reanalysis.
From the decision · page 2We have not received an answer, and the WCJ has filed a Report and Recommendation on Petition for Reconsideration (Report). In the Report, the WCJ concedes error on the issue that the 104 weeks of temporary disability should include the intervening period of temporary partial disability between the two periods of temporary total disability. As the WCJ writes in the Report, "Petitioner is correct that the 104 weeks should include the applicant's TPD period. The undersigned judge recommends that reconsideration be granted on this issue, so that the findings be amended to reflect the correct period and amounts owed." (Report at p. 5.)
Favours Applicant prevailed
This omission required reconsideration and further analysis of Labor Code section 5814 penalties.
The WCAB found no significant prejudice or irreparable harm from the order for an additional psychiatry QME panel, allowing the panel to proceed.
Favours Applicant prevailed
This finding denied defendant's petition to remove the additional psychiatry QME panel and favored the applicant's entitlement to medical evaluation.
From the decision · page 4Turning to the merits, with regard to defendant's contention that the WCJ should have not issued an order for an additional qualified medical evaluator panel in psychiatry, we note that a decision issued by the WCAB may address a hybrid of both threshold and interlocutory issues. If a party challenges a hybrid decision, the petition seeking relief is treated as a petition for reconsideration because the decision resolves a threshold issue. Although the decision here contains findings that are final (industrial injury, temporary disability, and Labor Code section 5814 penalties), the findings regarding the additional QME panels are not final. Since orders pertaining to discovery are not final orders, these issues are subject to the removal standard rather than the reconsideration standard. (See Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658 [81 Cal.Comp.Cases 1122].) The removal standard requires "significant prejudice" or "irreparable harm." (Cal. Code Regs, tit. 8, § 10955, subd. (a).) We find that this standard has not been met with regard to the order for an additional panel in psychiatry, as defendant will be able to present all applicable defenses and will be able to question any reporting physician.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5909
Labor Code section 5909
The Appeals Board must act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board.
From the decision · page 2Preliminarily, we note that former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:
Labor Code section 4453(c)
Labor Code section 4453(c)
The WCJ must explain how the average weekly wage was determined.
From the decision · page 4With regard to the issue of average weekly wage, a calculation of applicant's wages must be made and the WCJ should explain, with reference to Labor Code section 4453(c), how the average weekly wage was determined. To the extent that defendant asks the applicant clarifying questions on this or any other issue at an evidentiary hearing, unless a valid legal reason exists for objecting to questions on cross-examination, applicant must answer any relevant questions posed to him.
Labor Code section 5814
Labor Code section 5814
The WCJ must use discretion to balance parties' interests in imposing penalties and identify exact delayed compensation for penalty calculation.
From the decision · page 4With regard to the issue of Labor Code section 5814 penalties, the parties and the WCJ should further examine the issue of whether an insurer may be penalized for the acts of its insured prior to receiving notice of the claim. (See generally DuBois v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 382 [58 Cal.Comp.Cases 286] [UEF claims]; Carver v. Workers' Comp. Appeals Bd. (1990) 217 Cal.App.3d 1539 [55 Cal.Comp.Cases 36].) To the extent that a carrier may be legally penalized, the WCJ should consider the application of section 5814's commandment that, "In any proceeding under this section, the appeals board shall use its discretion to accomplish a
Ramirez v. Drive Financial Services (2008) 73 Cal.Comp.Cases 1324 (Appeals Board en banc)
Ramirez v. Drive Financial Services (2008) 73 Cal.Comp.Cases 1324 (Appeals Board en banc)
The WCJ must perform the analysis mandated by Ramirez in determining penalty amounts.
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About this page
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