California’s workers’ compensation system determines some of the benefits owed based on the average weekly wages of the employee prior to the date of injury.  This can be calculated in a variety of ways, but one method generally rejected is applying applicant’s imaginary wages to the final calculation.

In the case of Yolanda Cruz Garduno v. Tides Wharf Bodega Bay, applicant claimed that her average weekly wages were more than $100 greater than those found by the workers’ compensation Judge.  Applicant’s theory?  Worked but unpaid overtime.

Applicant claimed to have worked several hours of overtime for which she was never paid, but when pressed for proof, applicant came up empty-handed.  At first, she claimed that she had kept records of her hours, but that she had lost the papers which would have proved her case.  She also claimed to have complained to her supervisor, but this testimony was inconsistent with other testimony claiming she had never complained.

The workers’ compensation Judge reviewed the payment records, and averaged the weeks during which applicant worked at least 30 hours per week, finding an AWW of $308.43 (actual AWW was $297.50).  Although defendant did not seek reconsideration for this difference of $10.93 per week, applicant did.

The Workers’ Compensation Appeals Board relied on the WCJ’s ability to weigh credibility and the WCJ’s reasoning, denying applicant’s petition for reconsideration, and noting that “applicant’s claim of overtime income was supported only by inconsistent testimony and lacked other corroborating evidence.”

Now, bear in mind, Labor Code section 4453 lays out the various methods of calculating average weekly wages, and overtime pay can factor into the AWW.  However, though your humble blogger may appear cold-hearted and sinister, but reality is reality: it’s possible applicant worked overtime; it’s possible she wasn’t properly paid; it’s possible that workers’ compensation in California is a flawless system which doesn’t waste money, turn productive workers into permanently useless ones, and isn’t just a social experiment in insanity.  Like I said… it’s possible.

But, just as one would be ill-advised to bring a knife to a gun fight, bringing inconsistent testimony without so much as a literal scrap of paper evidence to support it is not going to drastically increase your chances of winning the blue-collar lotto.