AVERAGE WEEKLY WAGE– Labor Code §4653– The amount of the injured worker's average weekly wage is a question of fact. (See Argonaut Ins. Co. v. Ind. Acc. Com. (Montana) (1952) 57 Cal.2d 589.) Questions of fact also include credibility of witnesses, the persuasiveness or weight of the evidence. (See Mercer-Frazer v. Ind. Acc.Com. (1953) 40 Cal.2d 102.) Silvia Jaramillo v. Workers' Compensation Appeals Board, Goliath, Inc. dba 907 Club 7 WCAB Rptr. 10,155

AVERAGE WEEKLY EARNINGS– Labor Code §4453– In determining earning capacity, the employee's long-term earnings history is usually a reliable guide to predicting the employee's earning capacity. (See Argonaut Insurance Co. v. Industrial Acc. Com. (Montana) (1962) 27 Cal.Comp.Cases 130.) American All-Risk Loss Administrators v. Workers' Compensation Appeals Board (Jose A. Perez) 5 WCAB Rptr. 10,213

AVERAGE WEEKLY WAGE DETERMINATION– Labor Code §4453– In the absence of payroll or wage statements, or other contrary evidence, it is not error for the WCJ to rely on the applicant's testimony in determining applicant's earnings. Ellegaaard Custom Finishing v. Workers' Compensation Appeals Board (Juan Jimenez) 5 WCAB Rptr. 10,054

AVERAGE WEELY EARINGS– Injury of a peace officer termination of active service– Labor Code §4458.5– If a peace officer qualifies for an injury pursuant to the presumptions available to peace officers, then irrespective of his remuneration from any post-active service employment, his average weekly earnings for the purposes of determinating temporary disability indemnity, permanent total or partial indemnity shall be taken at the maximum fixed for such disability. County of Mendocino v. Workers' Compensation Appeals Board (Charles Jackson) 5 WCAB Rptr. 10,021

EARNINGS– Average weekly earnings determination– The evidentiary burden is on the applicant to establish earnings. [In this case, the applicant was a cab driver who paid a "daily gate" of $55.00 for use of a taxicab for a 12 hour shift, paid for his own gas and kept the receipts for the shift. The applicant kept no records of his earnings, did not report them to the IRS and there was nothing to support his testimony regarding earnings but his uncorroborated statements. He was properly found to be a minimum wage earner.] Massoud Fattahi v. Workers' Compensation Appeals Board, Yellow Cab Company. 4 WCAB Rptr. 10,334

EARNINGS– Average weekly wage determination– Labor Code §4453(c)– Average weekly wage earnings are properly based on an assessment of earning capacity which is determined under the statutory rules found in Labor Code §4453. The tirer of fact is required to make a finding of earning capacity when appropriate under the facts and the prediction of earnings for purposes of permanent disability must factor in long term earning history, ability to work, age, health, willingness and opportunities to work as well as the general condition of the labor market. (See Argonaut Ins. Co. v. Industrial Acc. Com. (Montana) (1962) 57 Cal.2d 589.) [In this case, the injured worker was working as a school crossing guard as an interim job and the unrebutted testimony was that she had consistently earned substantially more in her previous occupation.] City of Redondo Beach v. Workers' Compensation Appeals Board (Bobbie Gates) 4 WCAB Rptr. 10,304

AVERAGE EARNING CAPACITY– Labor Code §4453 (c)(4)– The purpose of determining average earning capacity is to make a prediction of what an injured worker's earnings would have been absent the injury. If a sporadic work history would not provide an accurate gauge for this determination, other factors may be taken into consideration, including ability to work, age and health, willingness and opportunities to work. (See Grossmont Hospital v. Workers' Com. Appeals Bd. (Kyllonen) (1997) 59 Cal.App.4th 1348.) Manuel Garza v. Workers' Compensation Appeals Board, California Indemnity Ins. Co. 3 WCAB Rptr. 10,275

EARNING CAPACITY– Labor Code §4453(c)(4)– Determination of average weekly wages for permanent disability– For purposes of determining earning capacity and the compensation rate for permanent disability for a part-time worker, earning capacity must be determined under Labor Code §4453(c)(4), which provides that average weekly earnings are to be taken at 100 percent of the sum which reasonably represents the average weekly earning capacity of the injured worker. (See Pham v. Workers' Comp. Appeals Bd. (2000) 78 Cal.App.4th 626, 2 WCAB Rptr. 10,100.) [In this case, the applicant was a 19 year-old part-time employee attending a community college. Her earning capacity was found to be maximum despite her actual part-time earnings since the WCJ properly considered her earning capacity based on her stated career goal of a four-year college degree in agriculture.) Alistar Insurance Company v. Workers' Compensation Appeals Board (Jill Cyr) 4 WCAB Rptr. 10,265

AVERAGE WEEKLY WAGE DETERMINATION– Labor Code §4453– The applicant's ability to work, his age and health, his willingness and opportunities to work, his skill and education, the general condition of the labor market, and employment opportunities for persons similarly situated are all relevant in making the determination of applicant's average week wage. (See Argonaut Insruance Company v. IAC (Montana) (1962) 57 Cal. 2nd 589.) Argonaut Insurance Company v. Workers' Compensation Appeals Board (Thomas Fischer) 3 WCAB Rptr. 10,027

AVERAGE WEEKLY WAGE DEGERMINATION– Labor Code §4453– When determining the applicant's average weekly wage, the WCJ must consider more than just the earning on the date of injury. The term earning capacity contemplates the injured worker's general over – all capability and productivity – the term envisages a dynamic, not a static, test and cannot be compressed into earnings at a given moment in time. (See Goytia v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 889.) Argonaut Insurance Company v. Workers' Compensation Appeals Board (Thomas Fischer) 3 WCAB Rptr. 10,027