What the panel ordered
The WCAB granted the petition for reconsideration solely to defer the issue of reasonable attorney fees to the trial level and otherwise affirmed the Findings of Fact and Award issued by the WCJ on May 20, 2024, including the award of temporary partial disability indemnity for 104 weeks following the July 27, 2021 injury date.
Applicant sought reconsideration of the Findings of Fact and Award issued by the WCJ on May 20, 2024, challenging the calculation of temporary disability benefits and attorney fees. The WCJ issued a Report and Recommendation on Petition for Reconsideration recommending denial except for attorney fees. The WCAB granted reconsideration, deferred attorney fees to the trial judge, and otherwise affirmed the WCJ's findings.
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.
Applicant was temporarily partially disabled as he was able to work in a reduced capacity at his business, thus not entitled to temporary total disability but to temporary partial disability benefits based on his average weekly wage calculated under Labor Code section 4458.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was temporarily disabled from his volunteer firefighter job but worked in a reduced capacity at his business during the disability period.
Favours Defendant prevailed
This fact established that applicant was temporarily partially disabled, not totally disabled, affecting the calculation of temporary disability benefits.
From the decision · page 4The parties stipulated that the applicant was temporarily disabled from his job as a volunteer firefighter at all times at issue. However, applicant continued to receive money from his business during the time that he was totally disabled from his job as a volunteer firefighter. The unrebutted testimony of the applicant is that he was working at his business, Travco, albeit in a reduced capacity, consistent with the work restrictions assigned by his doctor. (Summary of Evidence, page 4:8-15.) As the applicant was able to perform some work, and received payment for it, he was not temporarily totally disabled. Instead, he was temporarily partially disabled. I find that the applicant is entitled to temporary partial disability for the 104 weeks following the date of injury.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856
Temporary disability indemnity is payable during the healing period until recovery or permanent and stationary status, and may be total or partial depending on ability to work.
Applied to determine entitlement to temporary total or partial disability benefits based on work capacity and earnings.
From the decision · page 3In general, temporary disability indemnity is payable during the injured worker's healing period from the injury until the worker has recovered sufficiently to return to work, or until his/her condition reaches a permanent and stationary status. [] Temporary disability may be total (incapable of performing any kind of work), or partial (capable of performing some kind of work). [Citation] If the employee is able to obtain some type of work despite the partial incapacity, the worker is entitled to compensation on a wage-loss basis. [] If the partially disabled worker can perform some type of work but chooses not to, his "probable earning ability" will be used to compute wage-loss compensation for partial disability. [] If the temporary partial disability is such that it effectively prevents the employee from performing any duty for which the worker is skilled or there is no showing by the employer that work is available and offered, the wage loss is deemed total and the injured worker is entitled to temporary total disability payments.
California Labor Code
Labor Code sections 4453, 4458, 4654, and 4657 govern calculation of average weekly earnings and temporary partial disability benefits.
Applied to calculate earnings and temporary partial disability benefits in this case.
From the decision · page 4Sections 4453 and 4458 address how to compute an average weekly earnings. (Cal. Lab.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's unrebutted testimony that he worked in a reduced capacity at his business during the disability period
From the decision · page 4The parties stipulated that the applicant was temporarily disabled from his job as a volunteer firefighter at all times at issue. However, applicant continued to receive money from his business during the time that he was totally disabled from his job as a volunteer firefighter. The unrebutted testimony of the applicant is that he was working at his business, Travco, albeit in a reduced capacity, consistent with the work restrictions assigned by his doctor. (Summary of Evidence, page 4:8-15.) As the applicant was able to perform some work, and received payment for it, he was not temporarily totally disabled. Instead, he was temporarily partially disabled. I find that the applicant is entitled to temporary partial disability for the 104 weeks following the date of injury.
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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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