The WCAB recently issued the panel decision of Flores v. L.A. Specialty Food Produce Co., Inc., where the court discussed the effect of COVID-19 on earnings and the calculating of average weekly wages. Flores v. L.A. Specialty Food Produce Co., Inc., 2024 Cal. Wrk. Comp. P.D. LEXIS 87 (Cal. Workers’ Comp. App. Bd. March 29, 2024.) Applicant, Mr. Hever Rivera Flores, suffered an industrial injury on August 28, 2021 while employed by defendant. The parties proceeded to trial on August 24, 2023. One of the issues presented at trial was applicant’s earnings. Applicant asserted average weekly earnings of $1,301.46, while defendant asserted an average weekly wage of $749.38. Also at issue was a temporary disability overpayment of $4,639.24. 

In the Findings and Award issued on November 22, 2023, the WCJ sided with the defendant and determined the applicant had an average weekly wage of $749.42, which equated to a temporary disability rate of $499.61. The WCJ noted that COVID-19 undoubtedly effected the economy and applicant’s earnings as a result. However, considering the discrepancies in applicant’s earnings between 2020 and years prior, the WCJ analyzed, “after much reflection, I am not persuaded that in this case and on these facts, the earning capacity method is required on a theory that the method in 4453(c)(1) is not fair or reasonable, even in the context of a pandemic.”

Applicant filed a petition for reconsideration, arguing that the applicant’s earnings were diminished due to the COVID-19 pandemic. Applicant relied on Labor Code Section 4453(c)(4), arguing that Labor Code Section 4453(c)(1) did not accurately reflect his earnings due to the extraordinary changes in the labor market during the pandemic. Defendant, relying on Labor Code Section 4453(c)(1), argued that the applicant’s income in the twelve months prior to the injury was an accurate measurement of the applicant’s earnings.

The WCAB agreed with applicant regarding the appropriate calculation of the applicant’s earnings. The WCAB relied on Goytia v. Workmen’s Comp. Appeals Bd. (1970) 1 Cal.3d 889, where the court reasoned,

“When a regularly employed worker for reasons beyond his control, such as illness, strikes, lay offs, temporary recession, or other factors affecting the opportunity for full-time employment in his customary occupation, is receiving a wage at the time of his injury that does not fairly reflect his earning capacity as suggested by his work history, subdivision (c)(4) permits the board to consider that history and other relevant information in determining his earning capacity.” 

In Flores, the WCAB argued, “limiting the wage analysis to the 12 months prior to applicant’s date of injury will result in a similarly distorted basis for estimating applicant’s true earning power.” Based on the applicant’s 2019 earnings and testimony at trial, the WCAB determined the applicant’s 2020 earnings, the year prior to his injury, were not an accurate representation of his earning capacity.

The WCAB granted the applicant’s petition to amend the findings of fact to reflect his average weekly wage as $1,301.46, as opposed to the $749.42 weekly wage determined by the trial judge. The Appeals Board further determined that applicant’s temporary disability should have been calculated at weekly rate of $847.64. With the adjusted temporary disability rate, the WCAB determined that there was no overpayment of temporary disability benefits.