Gabriel Rivera Leon — ADJ13667342

Applicant, a 24-year-old part-time ABA therapist, suffered catastrophic injuries (including traumatic brain injury) in an April 22, 2020 motor vehicle accident while driving between worksites for defendant ACES. The WCJ found applicant's earning capacity increased over time and awarded temporary disability at three escalating rates, plus made a finding that applicant's post-injury long-term earning potential was $1,480.77 per week (based on becoming a BCBA/supervisor earning $77,000/year). Defendant sought reconsideration challenging the escalating TD rates, the long-term earning capacity finding, and attorney fees. The Board agreed that section 4453(c)(4) earning capacity analysis was the correct method given applicant's part-time, multi-employer status, but held that the law requires a single constant TD rate rather than escalating rates, and that the highest of the three rates should apply for the entire TD period. The Board further held that the long-term earning capacity finding was both premature (permanent disability/long-term earning capacity was not noticed as a trial issue) and unsupported by substantial evidence, as the projection of a supervisory salary was too speculative. The Board granted reconsideration, rescinded the F&A, and returned the matter to the WCJ for further proceedings.