California: When Average Weekly Wages Are Not What They Seem

In Brooks v. E. I. Dupont, 2018 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB amended the WCJ’s finding to clarify that the applicant who suffered industrial injuries to her knees and lumbar spine while working as administrative assistant on 12/5/2002 and 2/11/2003 was entitled to the temporary disability rate based on wages actually earned at the time her temporary disability began in 2007. The WCAB rejected the WCJ’s position that the applicant’s average weekly wage should be based on her earnings at the time of her injuries rather than her post-injury earnings, when the WCAB reasoned that because the applicant’s temporary disability arose many years after her injury and the applicant had multiple changes in job title with increased earnings, it was appropriate to award temporary disability based on the applicant’s actual wages on the date her temporary disability commenced.

PRACTICE POINT: This case is significant because it demonstrates the application of Labor Code section 4653(c)(4) and the case law that supports it, using a different means of calculating average weekly wages when the other three methods under Section 4653 “cannot reasonably and fairly be applied” and the average weekly earnings should be taken as 100% of the applicant’s earning capacity. Applicant’s counsel should always determine a new client’s earnings history for at least four years prior to a date of injury and during the five years after a date of injury to see if Labor Code section 4653(c)(4) should apply for the calculation of average weekly wage to determine a temporary total disability weekly rate. Simply using an applicant’s one-year pre-injury earnings history may not accurately determine the injured worker’s actual earning capacity at the time of injury. Applicant’s counsel in this case cleverly argued that the applicant’s increased wages over the years since her 2003 injury resulted in a greater wage loss for her when she became TTD in 2007. The Brooks case should be used as a template when counsel is contending that the other three methods of calculating average weekly wage for the purpose of the TTD and PD rates under Labor Code section 4653 are not fair or accurate.

(Note: The PDF for Brooks can be found at the end of this article.)

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