ADJ19532643 · May 18, 2026

The WCJ found applicant intended to retire only from the employer, not the labor market entirely, supported by credible trial testimony showing willingness to work post-retirement despite injury, and no contrary evidence from defendant.

From the decision · page 7At trial, when the Applicant was presented with this deposition testimony, she explained that she may have misspoken at the deposition, and that it was more a desire to retire just from CVS, (MOH/SOE page 6, lines 12-14). She stated that she is planning to renew her pharmaceutical license, and that as of the date of trial, she was taking the necessary classes towards that end, (MOH/SOE page 5, lines 9-12). She further testified that a job in the pharmaceutical field was offered to her sometime in April or May of 2024, but due to her shoulder injury, she did not accept it, and that she does not [at this time] feel comfortable returning to the work force, (MOH/SOE page 5, lines 17-25). She is currently looking online for work opportunities, and testified that when she retired from CVS, she told management that she was intending to retire from that company only, (MOH/SOE page 6, lines 1-5). No witnesses from management at CVS provided testimony contradicting the last statement.

Applicant testified at trial that she intended to retire only from CVS, not from the labor market entirely, and planned to renew her pharmaceutical license and seek work.

Favours Applicant prevailed

This showed willingness to work post-retirement, supporting entitlement to temporary disability benefits after retirement date.

From the decision · page 7At trial, when the Applicant was presented with this deposition testimony, she explained that she may have misspoken at the deposition, and that it was more a desire to retire just from CVS, (MOH/SOE page 6, lines 12-14). She stated that she is planning to renew her pharmaceutical license, and that as of the date of trial, she was taking the necessary classes towards that end, (MOH/SOE page 5, lines 9-12). She further testified that a job in the pharmaceutical field was offered to her sometime in April or May of 2024, but due to her shoulder injury, she did not accept it, and that she does not [at this time] feel comfortable returning to the work force, (MOH/SOE page 5, lines 17-25). She is currently looking online for work opportunities, and testified that when she retired from CVS, she told management that she was intending to retire from that company only, (MOH/SOE page 6, lines 1-5). No witnesses from management at CVS provided testimony contradicting the last statement.

Defendant presented no evidence to contradict applicant's testimony about her intention to work post-retirement.

Favours Applicant prevailed

Lack of contrary evidence supported the WCJ's credibility finding and the award of benefits.

From the decision · page 7The WCJ found that this testimony showed a "willingness to work", (Gonzales v. WCAB (1998) 63 CCC 1477, 1479). Petitioner argues in its Petition for Reconsideration that there is no evidence that the Applicant worked or attempted to work during the period from 1/13/2024 through 7/25/2024, the date Dr. Dini found her to be TD. However, the Applicant testified that within that period of time her pain level was increasing, that she was offered a job with a pharmacist/friend of hers and that she declined because she felt she could not handle the job at that time due to her shoulder injury, (MOH/SOE page 5, lines 17-21). It should be noted that Petitioner offered no evidence to the contrary.

Medical evidence from Dr. Dini and Dr. Michael Smith showed applicant remained temporarily disabled and surgery was pending as of trial date.

Favours Applicant prevailed

Supported continuation of temporary disability benefits post-retirement due to ongoing medical condition.

From the decision · page 4By way of background, the trial addressed the issue of whether the Applicant is entitled to Temporary Disability (TD) benefits after her retirement date of 1/12/2024. Her industrial injury occurred on 1/4/2024. Defendant paid TD from 1/8/2024 to 1/9/2024 (Ex. AA). Thereafter, Applicant continued to receive medical treatment past her retirement date. Based upon the Primary Treating Physician (PTP), Dr. Dini's report of 7/25/2024, which indicated that she was TD, (Ex. 3), Petitioner again picked up TD benefits as of that date and continued paying until 9/12/2024, (Ex. AA). Temporary Disability benefits were terminated based upon Applicant's deposition testimony of 9/6/2024, (Ex. AA).

Found applicant temporarily disabled as of 7/25/2024 and continuing due to work-related injury.

Supports ongoing temporary disability benefits after retirement date.

From the decision · page 4By way of background, the trial addressed the issue of whether the Applicant is entitled to Temporary Disability (TD) benefits after her retirement date of 1/12/2024. Her industrial injury occurred on 1/4/2024. Defendant paid TD from 1/8/2024 to 1/9/2024 (Ex. AA). Thereafter, Applicant continued to receive medical treatment past her retirement date. Based upon the Primary Treating Physician (PTP), Dr. Dini's report of 7/25/2024, which indicated that she was TD, (Ex. 3), Petitioner again picked up TD benefits as of that date and continued paying until 9/12/2024, (Ex. AA). Temporary Disability benefits were terminated based upon Applicant's deposition testimony of 9/6/2024, (Ex. AA).

Found applicant's condition not permanent and stationary as of 11/8/2024; recommended surgery if symptoms persisted.

Supports ongoing temporary disability and need for surgery post-retirement.

From the decision · page 11Although there are no primary treating physician reports from after February 27, 2025, the other medical evidence shows there was no material change in applicant's condition and no further treatment recommended except surgical intervention, which remained pending as of the date of trial. November 8, 2024 medical reporting of the panel qualified evaluator (PQME), Michael Smith, M.D., found applicant's condition was not yet permanent and stationary. (App. Exh. 1, p. 5, Causation.) In a supplemental orthopedic report by Dr. Smith dated February 11, 2025, Dr. Smith concluded that if applicant continued to be significantly symptomatic, then right shoulder arthroscopy was advised. (App. Exh. 2, p. 10, Discussion.) The primary treating physician report dated February 27, 2025, reflects "all manners" of conservative treatment were found to provide only temporary relief. (App. Exh. 3, p. 27.) Surgery was requested and now approved. (App. Exh. 3, p. 27.) Applicant planned to schedule surgery to correspond with her schedule. (App. Exh.

Labor Code section 4650 et seq.; Gonzales v. WCAB (1998) 63 CCC 1477

Temporary disability indemnity substitutes for lost wages during transitory incapacity to work; earning capacity includes ability, willingness, and opportunity to work.

The WCJ applied this standard to find applicant's willingness to work post-retirement, supporting temporary disability benefits.

From the decision · page 5The Workers' Compensation Act provides for temporary and permanent disability indemnity. (Lab. Code, § 4650 et seq.) Temporary disability indemnity is intended primarily to substitute for the worker's lost wages, in order to maintain a steady stream of income. (Chavira v. Workers' Comp. Appeals Bd. (1991) 235 Cal.App.3d 463, 473 [56 Cal.Comp.Cases 631].) Unlike permanent disability, which compensates an injured employee for diminished future earning capacity or decreased ability to compete in the open labor market, temporary disability is intended as a substitute for lost wages during a period of transitory incapacity to work. (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 753; see also Signature Fruit Co. v. Workers' Comp. Appeals Bd. (Ochoa) (2006) 142 Cal.App.4th 790, 795 [71 Cal.Comp.Cases 1044].)

Labor Code section 4453(c)(4)

Labor Code section 4453(c)(4) applies to calculate average weekly wage when customary methods are inadequate due to irregular employment history.

Applied to assess applicant's earning capacity post-retirement for temporary disability rate calculation.

From the decision · page 9Petitioner takes the position that Applicant's TD rate should be based upon her earnings post-retirement, which would be "zero" as she has not been gainfully employed since 1/12/2024, her date of retirement. Labor Code Section 4453(c)(4) applies when an employee works less than 30 hours per week or when the methods for calculating average weekly wages found in Sections 4453(c)(1), (c)(2), or (c)(3) are inapplicable or do not result in a just outcome. Where the customary method of determining average weekly wages, i.e., relying on the total amount the Applicant earned in the year prior to the date of injury. is inadequate to calculate average weekly earnings, Labor Code Section 4453(c)(4) is invoked in order to assess an injured worker's earning capacity. The purpose of Labor Code Section 4453(c)(4) is to provide parity for employees who have experienced irregularities in their employment history which does not allow for the simple calculation of determining average weekly wage.

Applicant's credible trial testimony showed willingness to work post-retirement despite injury, including plans to renew pharmaceutical license and job offer declined due to injury.

From the decision · page 7At trial, when the Applicant was presented with this deposition testimony, she explained that she may have misspoken at the deposition, and that it was more a desire to retire just from CVS, (MOH/SOE page 6, lines 12-14). She stated that she is planning to renew her pharmaceutical license, and that as of the date of trial, she was taking the necessary classes towards that end, (MOH/SOE page 5, lines 9-12). She further testified that a job in the pharmaceutical field was offered to her sometime in April or May of 2024, but due to her shoulder injury, she did not accept it, and that she does not [at this time] feel comfortable returning to the work force, (MOH/SOE page 5, lines 17-25). She is currently looking online for work opportunities, and testified that when she retired from CVS, she told management that she was intending to retire from that company only, (MOH/SOE page 6, lines 1-5). No witnesses from management at CVS provided testimony contradicting the last statement.