ADJ7376924 — California WCAB decision

What the panel ordered

Affirmed prior WCAB decision except amended to defer calculation of permanent total disability rate; remanded to WCJ for further proceedings

Remand from Fourth District Court of Appeal after annulment of prior WCAB decision and order for further proceedings

Read the official decision →

This docket was decided more than once. Shown here is the latest released decision; we also hold August 16, 2024, February 6, 2023.

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.

Permanent total disabilityRemanded

The WCAB found error in the prior calculation of the permanent total disability rate, deferred the calculation, and remanded for further proceedings to properly consider evidence and apply the correct legal standards.

From the decision · page 5Accordingly, it is our decision after remand to affirm the 2024 Decision except that we amend the decision to amend Finding no. 9 and the Award to defer calculation of applicant's permanent total disability rate. It is our further decision after remand to return this matter to the WCJ for further proceedings consistent with this decision and Labor Code section 5313.

The rules the panel named

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

California Labor Code

Labor Code section 4659(b)

Governs calculation of permanent total disability rate

California Labor Code

Labor Code section 4453(c)(1-4)

Methods for calculating average weekly earnings including subsection (4) for less than 30 hours per week or when other methods cannot be fairly applied

From the decision · page 3In the Decision, and despite the undisputed fact that applicant did not work "five or more working days a week," the Appeals Board stated that application of section 4453, subdivision (c)(1) ("section 4453(c)(1)") "is the most reasonable and fair method of calculation available given applicant's full-time employment and regular and consistent earnings at the time of injury." (Writ Exh. 1, p. 3.) The reasons given for this conclusion were that section 4453(c)(4) did not apply because "applicant did not work less than 30 hours per week but rather worked forty hours per week" earnings under section 4453(c)(1) is not reasonably and fairly applied."

California Labor Code

Labor Code section 5908.5

Requires detailed explanation of reasons for decision including consideration of evidence

From the decision · page 3First, section 4453(c)(4) is not written in the conjunctive, but rather in the alternative: "Where the employment is for less than 30 hours per week, or where for any reason the foregoing methods of arriving at the average weekly earnings cannot reasonably and fairly be applied..." (Lab. Code, § 4453(c)(4), italics added.) Therefore, the fact that respondent worked more than 30 hours per week is not dispositive of whether section 4453(c)(4) applies or does not apply. It may be that the Appeals Board did consider the second part of the first sentence of section 4453(c)(4) and still rejected its application; however, the Appeals Board failed to include any explanation of its consideration as required by section 5908.5. (Lab. Code, § 5908.5.)3

California Labor Code

Labor Code section 5313

Governs remand for further proceedings consistent with decision

From the decision · page 6IT IS FURTHER ORDERED as the Decision after Remand of the Workers' Compensation Appeals Board that this matter is RETURNED to the workers' compensation administrative law judge for further proceedings consistent with this decision and Labor Code section 5313.

ADJ7376924 · May 28, 2026

What the panel ordered

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