Robasciotti: Variable Hours and Medical Evidence Changed the Award

When your hours change from week to week, an injury can leave you facing two uncertainties: How much income your benefits should replace, and how your lasting limitations will be measured. Payroll records and medical reports answer different parts of those questions. Both need to reflect the work and life you actually had.

In Robasciotti v. Maxim Healthcare, No. ADJ12265574 (WCAB Oct. 14, 2024), the Workers’ Compensation Appeals Board set average weekly earnings at $1,050 after examining the worker’s hiring agreement, variable schedule and overtime. It also required more medical evidence before deciding permanent disability. The decision shows why a wage calculation and a disability rating each need their own supporting explanation.

The hiring agreement mattered more than an unusual overtime week

Karen Robasciotti worked as a psychiatric technician and sustained an industrial injury on January 16, 2019. Her hours varied considerably. The wage statement included 11 weeks without work, several weeks above 40 hours and one 50-hour week. She also testified about two occasions when she worked 60 or more hours.

At trial, Robasciotti proposed weekly earning capacity of $1,560.50. The employer urged an average of roughly $624 based on the preceding year. The judge instead used a 60-hour schedule: Forty regular hours at $25 and 20 overtime hours at $37.50, producing $1,750 in average weekly earnings.

The wage analysis in Robasciotti treated those rare 60-hour weeks as outliers. It gave greater weight to her credible testimony that she had been hired for three 12-hour days each week, consisting of 24 regular hours and 12 overtime hours. That schedule supported $600 in regular pay plus $450 in overtime, or $1,050 in weekly earnings.

That was an average-weekly-earnings figure used in calculating benefits, rather than the amount of a weekly disability check. It was lower than the judge’s figure but higher than the employer’s proposed historical average. The Board’s task was to identify a realistic earning capacity supported by this record.

Earning capacity required a supported prediction

Labor Code section 4453(c) provides different calculation methods. The regular-schedule method in subdivision (c)(1) requires at least 30 hours and five working days a week. Robasciotti’s three-day schedule did not satisfy the five-day requirement.

The statutory analysis in Robasciotti also distinguished fluctuating hours from the irregular-rate or specified-period earnings addressed by subdivision (c)(3). Her hourly rate was not irregular or commission-based, and her pay was not specified by the week, month or another period. The Board used subdivision (c)(4), which permits a reasonable estimate of earning capacity when the other methods cannot reasonably and fairly be applied.

Drawing on Goytia v. Workmen’s Compensation Appeals Board, 1 Cal.3d 889, 895 (1970), and Argonaut Insurance Co. v. Industrial Accident Commission (Montana), 57 Cal.2d 589, 594–595 (1962), the Board considered past earnings alongside the worker’s ability, willingness and opportunity to work, skills and labor-market circumstances.

Those factors made the hiring terms and the reasons for missed or extra hours important. Robasciotti had worked fewer than her expected hours when the employer lacked work, while the unusually long weeks overstated her normal schedule. The Board accepted an earning-capacity approach but required a better-supported number.

The medical reports needed to connect impairments with daily activities

The original award also found permanent total disability without apportionment. The judge relied on medical evidence that included a dental evaluator’s recommendation to add the impairments from dental, head and facial injuries instead of combining them through the Combined Values Chart. Adding those components produced 118 percent before the other impairment groups were combined.

The review of that medical reasoning in Robasciotti identified a specific gap. The dental evaluator described severe, separate injuries and generally affected daily activities. The report and deposition needed to identify the particular activities affected by each impairment and explain how those effects interacted.

The Board applied Vigil v. County of Kern, 89 Cal.Comp.Cases 686, 688–689, 691–693 (WCAB 2024) (en banc). Its two routes for departing from the chart concern daily activities: Either the impairments’ effects do not overlap, or their overlapping effects increase or amplify the impact. Separate body parts alone do not supply that analysis.

A medical report therefore needs to explain what happens when the person eats, speaks, dresses or performs another affected activity, as supported by the actual medical findings. Naming an activity is a starting point. The physician must explain which impairment affects it, how, and whether another impairment duplicates or amplifies that effect. The word “synergy” cannot replace that reasoning.

Further medical reporting kept the disability question open

Vigil was issued on June 10, 2024, after the dental evaluator’s deposition and the trial proceedings discussed in Robasciotti. The Board directed further development of the medical record under that framework.

The record-development directions in Robasciotti described supplementation by physicians who had already reported as the preferred procedure. That gave the existing evaluators an opportunity to supply the missing analysis rather than leaving the rating to unsupported conclusions.

The replacement findings deferred permanent disability, apportionment and attorney’s fees. Those were genuine unresolved issues sent back for further work. The earlier total-disability finding and the 118-percent addition calculation should be understood in that procedural setting, rather than presented as the final result of the decision.

The replacement award preserved benefits while correcting the wage figure

The replacement findings in Robasciotti set average weekly earnings at $1,050. They also stated that the worker had received 104 weeks of temporary disability, with the last payment made on February 8, 2021, at an incorrect rate. She was entitled to the difference.

The award in Robasciotti preserved temporary-disability benefits under that finding, future medical care, and reimbursement of out-of-pocket medical expenses subject to proof and adjustment. The Board granted reconsideration and rescinded the July 12, 2024 decision, replacing it with these findings and award.

For the worker, the next steps involved both the payment adjustment and the medical evidence needed to resolve permanent disability. A correction to the wage basis could proceed while the separate rating and apportionment questions remained open.

Build separate records for wages and medical limitations

For wages, gather the hiring agreement, schedules, time records and complete payroll history. Explain why particular weeks had no work or unusually heavy overtime. Identify what supports the expected schedule, including firsthand testimony and the employer’s staffing needs. A high week or a low annual average needs context.

For disability, keep the complete evaluator reports, depositions and supplements. Record the actual daily activities affected, then ask whether the physician has explained the relationship between each impairment and those activities. Counsel can use a targeted supplemental question to address a missing medical explanation.

Our Kelley analysis addresses the foundation for a disputed impairment assessment. Llena examines a different earning-capacity record in which permanent total disability was upheld. Robasciotti illustrates why the wage basis can be corrected while the medical rating still needs further development.