What the panel ordered
Petition for Reconsideration is denied.
Defendant filed a timely Petition for Reconsideration challenging the Findings and Award issued by Presiding Judge Katie F. Boriolo on October 8, 2025.
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 court found that the applicant's actual lost wages during incapacity should be used, but the record was insufficient to determine exact earnings. Determination of Average Weekly Wage was deferred with jurisdiction reserved.
From the decision · page 7As stated in the Court's written opinion, "The court finds it appropriate to award indemnity based upon the applicant's actual lost wages during the period of her incapacity, as the wages earned during the year prior to her injury no longer reflect her true earning capacity. However, the current evidentiary record is insufficient to determine her exact earnings at that time. Applicant's reliance on the pay statement history at page 56 of Applicant's Exhibit 25, while noted, is not substantial as it is unclear as to what exact periods these payments covered. This sole issue is deferred upon further development of the record. The parties are encouraged to informally resolve this issue with jurisdiction reserved." (Opinion on Decision)
The WCJ relied on the QME Dr. Solomon's opinion, which was found to be substantial medical evidence, to support a permanent and stationary date of November 8, 2024 and a permanent disability rating of 22%. Dr. George's opinion was found to be conclusory and not substantial evidence.
From the decision · page 7b. THE REPORTING OF QME DR. SOLOMON CONSTITUTES SUBSTANTIAL MEDICAL EVIDENCE TO SUPPORT A P&S DATE OF NOVEMBER 8, 2024 AND A PERMANENT DISABILITY RATING OF 22%.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
QME Dr. Solomon's opinion was found to be substantial medical evidence supporting a P&S date of November 8, 2024 and a 22% PD rating, while PTP Dr. George's opinion was rejected as conclusory.
Favours Applicant prevailed
The WCJ and panel relied on Dr. Solomon's opinion to determine the outcome on permanent disability and P&S date.
From the decision · page 7b. THE REPORTING OF QME DR. SOLOMON CONSTITUTES SUBSTANTIAL MEDICAL EVIDENCE TO SUPPORT A P&S DATE OF NOVEMBER 8, 2024 AND A PERMANENT DISABILITY RATING OF 22%.
Applicant's post-injury wage increase made pre-injury earnings an inaccurate reflection of earning capacity, so the record was insufficient to determine AWE and the issue was deferred.
Favours Applicant prevailed
The inability to determine exact earnings led to deferral of the AWE/TD rate issue.
From the decision · page 7As stated in the Court's written opinion, "The court finds it appropriate to award indemnity based upon the applicant's actual lost wages during the period of her incapacity, as the wages earned during the year prior to her injury no longer reflect her true earning capacity. However, the current evidentiary record is insufficient to determine her exact earnings at that time. Applicant's reliance on the pay statement history at page 56 of Applicant's Exhibit 25, while noted, is not substantial as it is unclear as to what exact periods these payments covered. This sole issue is deferred upon further development of the record. The parties are encouraged to informally resolve this issue with jurisdiction reserved." (Opinion on Decision)
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.
Dr. Solomon opined that applicant was permanent and stationary as of November 8, 2024, with a 15% WPI based on limited range of motion and strength deficit, and his opinion was found to be substantial medical evidence supporting the 22% PD rating after apportionment.
His reporting was considered substantial medical evidence and was relied upon by the WCJ.
From the decision · page 8On the other hand, the QME Dr. Solomon stated "My assessment is that she has not recently been seen by her orthopedic surgeon, Dr. Sandoval, with her failed subscapularis repair and subscapularis atrophy. It is little chance that her subscapularis is able to be repaired with any type of revision procedure. Therefore, I would make her permanent and stationary." (App. Exh. 2/ Def. Exh. B.) Based on the record, it was determined that Dr. George's opinion regarding permanent and stationary status is conclusory and not substantial medical evidence. Dr. George does not address applicant's development of subscapularis atrophy or why the applicant's condition was unlikely to change substantially in the next year with or without medical treatment. (Cal. Code Regs., tit. 8, § 10152.) Petitioner's claim that the Court's finding of permanent and stationary date constitutes a "denial of due process" is meritless. (Petition p. 4, line 3.) The defendant was not prevented from requesting a supplemental report and cross-examining the QME or PTP regarding their permanent and stationary opinions.
Dr. George opined that applicant became permanent and stationary on August 20, 2024, with an 11% WPI, but his opinion was found to be conclusory and not substantial medical evidence.
Dr. George's opinion regarding permanent and stationary status is conclusory and not substantial medical evidence.
From the decision · page 8Here, the PTP Dr. George diagnosed the applicant with merely "Right Subscapularis Tendon Tear, Subseq." (App. Exh. 21/Def. Exh. A.) Regarding her permanent and stationary status, Dr. George opined, "In my opinion the patient has reached Maximal Medical Improvement (MMI) and is deemed Permanent and Stationary." (App. Exh. 21/Def. Exh. A.) It is unclear if Dr. George reviewed the applicant's most recent MRI of March 28, 2024 or if its findings were determinative in his P&S determination. Absent any explanation or rationale, his conclusion is baseless.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4653
If the injury causes temporary total disability, the disability payment is two-thirds of the average weekly earnings during the period of such disability, consideration being given to the ability of the injured employee to compete in an open labor market.
Applied to determine temporary disability rate and average weekly earnings.
From the decision · page 6"If the injury causes temporary total disability, the disability payment is two-thirds of the average weekly earnings during the period of such disability, consideration being given to the ability of the injured employee to compete in an open labor market."
Labor Code section 4453(c)(4)
Where the employment is for less than 30 hours per week, or wherefor any reason the foregoing methods of arriving at the average weekly earnings cannot reasonably and fairly be applied, the average weekly earnings shall be taken at 100 percent of the sum which reasonably represents the average weekly earning capacity of the injured employee at the time of his or her injury, due consideration being given to his or her actual earnings from all sources and employments.
Applied to determine average weekly earnings when actual earnings do not fairly represent earning capacity.
From the decision · page 6"Where the employment is for less than 30 hours per week, or wherefor any reason the foregoing methods of arriving at the average weekly earnings cannot reasonably and fairly be applied, the average weekly earnings shall be taken at 100 percent of the sum which reasonably represents the average weekly earning capacity of the injured employee at the time of his or injury, due consideration being given to his or her actual earnings from all sources and employments."
Almaraz/Guzman II (2009) 74 Cal. Comp. Cases 1084 at 1114
A physician may utilize any chapter, table or method in the AMA Guides that most accurately reflects the injured employee's impairment, as long as they provide appropriate justification for doing so.
Applied to support Dr. Solomon's use of both range of motion and strength deficit in impairment rating.
From the decision · page 8They chose not to do so. Petitioner argues that Dr. Solomon did not abide by the AMA Guides in his application of decreased strength deficit with decreased motion. (Petition p. 4, lines 19-20.) This contention ignores that a physician may utilize any chapter, table or method in the AMA Guides that most accurately reflects the injured employee's impairment. (Almaraz/Guzman II (2009) 74 Cal. Comp. Cases 1084 at 1114.) A physician may employ the four corners of the AMA guides in reporting an applicant's WPI as long as they provide appropriate justification for doing so. Impairment percentages estimate the impact of the impairment on the individual's overall ability to perform activities of daily living, excluding work. (AMA Guides, p. 4.)
What proof carried it
The evidence the panel weighed, by kind.
Applicant credibly testified to a post-injury wage increase from $18 to $20 per hour, which affected the calculation of average weekly earnings.
From the decision · page 7In this case, the applicant continued to work after her injury for nearly a year until she stopped working to undergo surgery. She credibly testified that she received an increase in hourly wages during that time period, from $18 an hour to $20 an hour. (Def. Exh. J, Deposition p. 21, lines 13-18.)
Dr. Solomon's comprehensive objective testing and MRI confirmation of failed subscapularis repair and atrophy supported his impairment rating and P&S date.
From the decision · page 9In his evaluating report of November 8, 2024, Dr. Solomon administered comprehensive objective testing to support his diagnosis of:
Dr. Solomon noted applicant's activities of daily living limitations, including inability to raise her arm, using left hand for toiletry, and difficulty showering, supporting the impairment rating.
From the decision · page 9Dr. Solomon noted the applicant's activities of daily living limitations regarding her arm, including not being able to raise her arm, using her left hand for toiletry and having a hard time showering. (Id.) Based on these results, Dr. Solomon properly relied on both the applicant's limited range of motion and deficit in strength to most accurately reflect her impairment. His reporting is considered substantial medical evidence and was relied upon.
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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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