ADJ555322 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by Defendant after Findings of Fact and Award dated 10/31/2022; WCJ report adopted and incorporated by panel.

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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.

Temporary disabilityApplicant prevailedmultiple

The WCJ found the method of calculating the retroactive increase in temporary disability payments using Labor Code Section 4453(c)(4) and (d) was reasonable and fair based on credible and unrebutted testimony, and that the wage increases were scheduled and reasonably anticipated at the time of injury.

From the decision · page 4The WCJ found that Applicant was entitled to a retroactive increase to his temporary disability indemnity and the payment of this retroactive increase should be paid pursuant to Labor Code Section 4661.5. The last date of injury at issue is 1997. Defendant's first argument disputes the method of calculating that retroactive rate contending that Labor Code Section 4453 (c) (1) should be utilized rather than the section relied upon by the WCJ in her decision, Section 4453 (c) (4) and (d). To be clear, there was no evidence whatsoever presented at trial as to how Applicant's previous temporary disability was calculated. The only issue presented at trial was whether or not Applicant was entitled to an increased temporary disability rate pursuant to Labor Code Section 4661.51 and the Hofmeister decision.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant's wage increases were scheduled and reasonably anticipated at the time of injury.

Favours Applicant prevailed

Supported the finding that Applicant was entitled to retroactive increase in temporary disability payments.

From the decision · page 5Defendant relies on the holding in Grossmont Hospital v WCAB 59 Cal Comp Cases 1649 (1997).2 to support their position that Applicant is not entitled to a retroactive increase in his temporary disability. Contrary to Defendant's contention, the Court of Appeal in that case did not deny Applicant's claim for a higher TTD rate but rather remanded the matter back to the trial level to determine whether there was a record to establish whether the wage increase was scheduled or reasonably anticipated at the time applicant was injured. The record in the instant case is sufficient to establish that Applicant's wage increases were both scheduled and reasonably anticipated at the time of his injuries.

Applicant's credible testimony that he was unaware of the retroactive claim until years after injury and no evidence of prejudice to Defendant.

Favours Applicant prevailed

Supported denial of Defendant's laches defense and entitlement to retroactive payments.

From the decision · page 6Jusufbegovic case is not citable authority. Based on the entire record, the interpretation of Labor Code Section 4661.5 in the instant case is consistent with the ruling in Hofmeister. Finally, Defendant raises the legal doctrine of Laches but as Applicant points out in his Answer, no evidence was offered to prove either unreasonable delay by Applicant in bringing his claim or that as a result Defendant suffered prejudice. Applicant testified that he did not bring his claim for retroactive temporary disability as early as 2004 or 2005 because he didn't know about it then and he didn't know he was owed money in 2008. He also testified that in 1995 he didn't know he would still be on temporary disability this long. (See Minutes of Hearing and Summary of Evidence dated 8/18/2022, page 3 lines 8) The applicant's testimony was deemed credible by the WCJ and Defendant failed to present any evidence that any prejudice occurred.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

California Labor Code

Labor Code Section 4661.5 regarding retroactive increase in temporary disability payments.

Applied to determine entitlement to retroactive increase in temporary disability payments.

From the decision · page 4The WCJ found that Applicant was entitled to a retroactive increase to his temporary disability indemnity and the payment of this retroactive increase should be paid pursuant to Labor Code Section 4661.5. The last date of injury at issue is 1997. Defendant's first argument disputes the method of calculating that retroactive rate contending that Labor Code Section 4453 (c) (1) should be utilized rather than the section relied upon by the WCJ in her decision, Section 4453 (c) (4) and (d). To be clear, there was no evidence whatsoever presented at trial as to how Applicant's previous temporary disability was calculated. The only issue presented at trial was whether or not Applicant was entitled to an increased temporary disability rate pursuant to Labor Code Section 4661.51 and the Hofmeister decision.

California Labor Code

Labor Code Section 4453(c)(4) and (d) regarding calculation of average weekly earnings for temporary disability.

Applied to determine the method of calculating the retroactive temporary disability rate.

From the decision · page 4The WCJ found that Applicant was entitled to a retroactive increase to his temporary disability indemnity and the payment of this retroactive increase should be paid pursuant to Labor Code Section 4661.5. The last date of injury at issue is 1997. Defendant's first argument disputes the method of calculating that retroactive rate contending that Labor Code Section 4453 (c) (1) should be utilized rather than the section relied upon by the WCJ in her decision, Section 4453 (c) (4) and (d). To be clear, there was no evidence whatsoever presented at trial as to how Applicant's previous temporary disability was calculated. The only issue presented at trial was whether or not Applicant was entitled to an increased temporary disability rate pursuant to Labor Code Section 4661.51 and the Hofmeister decision.

Hofmeister

Hofmeister decision interpreting Labor Code Section 4661.5.

Applied to support entitlement to retroactive increase in temporary disability payments.

From the decision · page 4The WCJ found that Applicant was entitled to a retroactive increase to his temporary disability indemnity and the payment of this retroactive increase should be paid pursuant to Labor Code Section 4661.5. The last date of injury at issue is 1997. Defendant's first argument disputes the method of calculating that retroactive rate contending that Labor Code Section 4453 (c) (1) should be utilized rather than the section relied upon by the WCJ in her decision, Section 4453 (c) (4) and (d). To be clear, there was no evidence whatsoever presented at trial as to how Applicant's previous temporary disability was calculated. The only issue presented at trial was whether or not Applicant was entitled to an increased temporary disability rate pursuant to Labor Code Section 4661.51 and the Hofmeister decision.

ADJ555322 · January 23, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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