Amada Jimenez Herrera: Postinjury Raise and an Unresolved TTD Rate

A worker’s pay can change between an industrial injury and the period when disability prevents work. In Amada Jimenez Herrera v. Sweet T’s Restaurant + Bar, No. ADJ17939202 (Cal. Workers’ Comp. Appeals Bd. Jan. 12, 2026), a dishwasher and kitchen helper continued working after her shoulder injury and received an hourly raise before stopping work for surgery. The WCAB denied the insurer’s petition for reconsideration of an award that recognized temporary total disability but reserved the exact benefit rate. The three-commissioner Board panel adopted Presiding WCJ Katie F. Boriolo’s report, which explains why preinjury earnings did not fairly measure the worker’s later earning capacity and why the pay-statement history in Applicant’s Exhibit 25 did not establish a weekly figure. Jimenez Herrera, Opinion and Order at 1, 3; Report and Recommendation at 6–7.

The award separated entitlement from the unresolved weekly rate

The worker injured her right shoulder on June 7, 2022, then continued working for nearly a year. The October 8, 2025 Findings and Award found her temporarily totally disabled from April 12, 2023, through November 7, 2024. It awarded 22% permanent disability after apportionment and selected November 8, 2024, as the permanent-and-stationary date. But the amount of temporary disability indemnity remained for the parties to determine, with jurisdiction reserved if they disagreed. Illinois Midwest Insurance Agency, LLC, on behalf of ProCentury Insurance Company, sought reconsideration on the wage method, the permanent-and-stationary date, the impairment assessment, and statements in the worker’s trial brief. The Board adopted the WCJ’s report and denied reconsideration. Jimenez Herrera, Opinion and Order at 3; Report and Recommendation at 4–5.

That procedural posture matters. The decision did not announce a final average weekly wage or order payment at a particular rate. It left a factual calculation for a developed record while sustaining the broader award. Treating its earning-capacity discussion as a fixed dollar ruling would turn an expressly reserved issue into an invented holding.

Why the preinjury earnings year did not settle the calculation

The insurer argued for the average-weekly-earnings methods in Labor Code section 4453(c). Section 4653 sets temporary total disability payments at two-thirds of average weekly earnings during the disability period, with consideration of the worker’s ability to compete in an open labor market. Section 4453(c)(4) addresses the calculation method when the preceding methods cannot reasonably and fairly be applied: The measure is a sum reasonably representing average weekly earning capacity, with due consideration to actual earnings. Citing Rubalcava v. Workers’ Comp. Appeals Bd., 220 Cal. App. 3d 901, 908 (1990), the adopted report treated the choice of method as a factual question. Jimenez Herrera, Report and Recommendation at 6.

Here, the worker testified that her hourly pay rose from $18 to $20 after injury and before she stopped working. The WCJ found that wages in the year before injury no longer reflected her true earning capacity during the later incapacity. The adopted report relied on Goytia v. Workers’ Comp. Appeals Bd., 35 Cal. Comp. Cases 27, 30–32 (1970), for a dynamic conception of earning capacity and Grossmont Hospital v. Workers’ Comp. Appeals Bd. (Kyllonen), 59 Cal. App. 4th 1348 (1997), for using capacity when injury-date earnings would be unfair. It supported looking to the changed capacity rather than mechanically carrying forward older wages. The credible raise and the gap between injury and work stoppage drive this result; not every postinjury wage change automatically controls a temporary-disability rate. Jimenez Herrera, Report and Recommendation at 6–7.

The pay statement still needed a usable time period

Recognizing the higher hourly rate did not answer how many hours or what weekly wages to use. The WCJ found the pay-statement history the worker cited insufficient because the record did not show the exact periods covered by the payments. The parties were directed to develop the evidence further and encouraged to resolve the rate informally, with the WCJ retaining jurisdiction. Jimenez Herrera, Report and Recommendation at 7. An hourly rate alone is not a weekly earnings calculation; the relevant pay periods, hours, and other earnings must be identifiable before a supported figure can be derived.

For a similar dispute, the record should connect each pay statement to its start and end dates, hours paid, hourly rate, and any other compensation included in the asserted average. The date the worker stopped working and the dates of temporary disability should be clear. Those are practical evidentiary steps drawn from the gap in this record, not a new checklist imposed by the panel.

The medical findings remained a separate issue

The insurer also challenged the permanent-and-stationary date and rating. The treating physician had selected August 20, 2024, without explaining how the worker’s later MRI findings and shoulder condition affected improvement prospects. The QME reviewed the recurrent tear and failed repair, reexamined her, and selected November 8, 2024. The adopted report found the QME’s reasoning substantial, including his explained use of range-of-motion and strength findings for impairment. The report invoked Almaraz/Guzman II, 74 Cal. Comp. Cases 1084, 1114 (2009), for reasoned use of AMA Guides methods and rejected the claimed due-process problem because the insurer had an opportunity to seek a supplemental report or cross-examination. Jimenez Herrera, Report and Recommendation at 5, 7–9. Those medical findings help explain the affirmed award, but they did not supply the missing wage periods or resolve the weekly rate.

What the panel decision offers to a wage-rate dispute

Jimenez Herrera illustrates two linked points: A material wage change before disability may make an injury-date earnings period unfair as a measure of lost earning capacity, and the replacement calculation still needs records that establish the relevant weekly earnings. The case turns on its own testimony and incomplete pay history. It is a WCAB panel decision, useful for its reasoning but not binding precedent for every wage dispute. A party should test the applicable section 4453 method against the actual employment and earnings record, rather than assume either the earliest or latest hourly figure decides the amount.

Questions about a raise before temporary disability

Does a raise after an injury necessarily increase temporary disability benefits?

No automatic increase follows from the raise alone. In this case, the raise made the preinjury earnings year an unfair proxy for the worker’s later earning capacity, but the exact average weekly wage remained unresolved because the pay-period record was incomplete. Jimenez Herrera, Report and Recommendation at 7.

Can the WCAB decide temporary-disability dates while reserving the rate?

Yes. The award identified the period of temporary total disability and left the weekly rate for the parties to determine on a better record, with jurisdiction reserved for a dispute. Jimenez Herrera, Report and Recommendation at 5, 7.