This document is an answer filed by Illinois Midwest Insurance Agency, LLC to the applicant Marcela Acosta's petition for reconsideration of a workers' compensation claim. It summarizes the case history, including that Acosta alleged a cumulative trauma injury and is receiving temporary total disability benefits. It disputes the rate that benefits are being paid at. The answer argues that the original ruling should stand as it is based on substantial evidence, including Acosta's tax documents showing lower earnings than she claims, while she provided no documentation to support her testimony claiming higher earnings. It aims to show the original ruling was reasonably based on the evidence presented.

1. Grancell, Lebovitz, Stander,
Reubens and Thomas
A Professional Corporation
200 North Sepulveda Boulevard, Suite 1400
El Segundo, California 90245-4359
(310) 649-4911 / FAX (310) 641-8265
Attorney's Contact #: (310) 981-1320
Attorneys for Defendant, Illinois Midwest Insurance Agency, LLC as administrator
on behalf of Star Insurance Company
WORKERS' COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
MARCELA ACOSTA,
Applicant,
v.
FLOYDS 99 BARBERSHOP, A
CALIFORNIA LLC; ILLINOIS
MIDWEST INSURANCE AGENCY ON
BEHALF OF STAR INSURANCE
COMPANY
Defendant.
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WCAB Case No: ADJ7518238;
ADJ7518237
ILLINOIS MIDWEST INSURANCE
AGENCY, LLC’S ANSWER TO
PETITION FOR RECONSIDERATION
COMES NOW defendant, Illinois Midwest Insurance Agency, LLC, the
third-party workers’ compensation administrator on behalf of Star Insurance
Company, the workers’ compensation to the employer, Floyds 99, a California LLC,
and hereby answers applicant’s July 16, 2011 Petition for Reconsideration
contending that the July 6, 2011 Joint Findings of Facts and Order by WCJ Robin
Brown not be disturbed as it is based on substantial evidence.

2. This Answer is based on the memoranda of points and authorities set forth
hereinbelow and such other written and documentary evidence as may be admitted by
the WCAB.
DATED: July 22, 2011 Respectfully submitted,
GRANCELL, LEBOVITZ, STANDER,
REUBENS AND THOMAS
A Professional Corporation
By:_____________________________
Aditya V. Barot
Attorneys for Defendant,
Illinois Midwest Insurance Agency,
LLC as administrator on behalf of Star
Insurance Company
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3. I.
STATEMENT OF FACTS
Applicant, Marcela Acosta (hereinafter referred to as “the applicant”) invoked
the jurisdiction of the WCAB via undated Application for Adjudication of Claim
alleging a cumulative trauma injury from October 27, 2007 through January 23, 2010
to her back, neck, upper extremities, muscular skeletal system, head, sleep disorder
and psych injury. Illinois Midwest Insurance Agency, LLC (hereinafter referred to as
“Illinois Midwest”) tendered appropriate Answer denying the same via February 7,
2010 Answer to Application for Adjudication of Claim.
Applicant eventually transferred to the employer’s Medical Provider Network
where she was found temporarily totally disabled by Dr. Craig Chanin. Accordingly,
Illinois Midwest did disburse TTD benefits and continues to disburse such benefits to
date.
However, applicant has consistently disputed the rate of TTD benefits. Illinois
Midwest has commenced disbursal of TTD benefits pursuant to applicant’s purported
earnings as set forth on the 2009 W-2 Statement (as admitted by the June 8, 2011
Minutes of Hearing and Summary of Evidence). However, applicant maintains that
her earnings are $920.00 per week based on her deposition testimony (see Minutes of
Hearing and Summary of Evidence).
This matter was eventually submitted to Trial before WCJ Robin Brown who
provided parties with her Joint Findings of Fact and Order dated July 6, 2011
wherein she found that the applicant’s earnings at the time of the alleged injury were
$420.70 per week producing a TTD rate of $280.47 per week based on the W-2
information coupled with the applicant’s uncorroborated deposition testimony of
receipt of additional $500.00 per week in tips (July 6, 2011 Joint Findings of Fact
and Order). Judge Brown further indicated that the “applicant’s uncorroborated
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4. deposition testimony of receipt of additional $500.00 per week in tips was not
persuasive” (see July 6, 2011 Joint Opinion on Decision).
Applicant has timely filed the July 16, 2011 Petition for Reconsideration of
the July 6, 2011 Joint Findings of Fact and Order. Illinois Midwest, on behalf of Star
Insurance, hereby answers the same contending that Judge Brown’s findings should
not be disturbed and no Order of Reconsideration be granted as Judge Brown
decision is based on substantial medical evidence.
II.
LEGAL ARGUMENT
A. THE WCJ’S DECISION SHOULD NOT BE DISTURBED AS IT IS
BASED ON SUBSTANTIAL EVIDENCE IN THE FORM OF
UNDISPUTED DOCUMENTATION PERTAINING TO APPLICANT’S
EARNINGS IN THE YEAR OF 2009.
Judge Brown’s Joint Opinion and Decision is based on Joint Exhibit “X”
which is Internal Revenue Service form W-2 for the year 2009, as well as Joint
Exhibit “Y” which is designated pages (Pages 2 through 4, and 44 through 47) of
applicant’s January 13, 2011 deposition.
During the course of the January 13, 2011 deposition, the applicant was forced
to admit that she did not claim her tips on the 2009 W-2 statement (page 45, lines 1
through 2). She was further forced to admit that she has no documents evidencing
receipt of $500.00 per week in tips whilst employed at Floyds 99 (page 46, lines 20
through 25). She further admitted that she had no evidence outside of her testimony
to prove receipt of $500.00 per week in tips (page 47, lines 8 through 12).
Applicant’s attorney erroneously indicates that applicant’s testimony is not
contradicted. The W-2 statement is offered for the express purpose of contradicting
the applicant’s testimony regarding receipt of tips. In fact, applicant is offering
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5. nothing more than conjecture and speculation in support of increased TTD rate. On
the other hand, Illinois Midwest’s disbursal of benefits is based on undisputed
documentary evidence pertaining to the applicant’s earnings in the 52 weeks
preceding her filing of the Application for Adjudication of Claim.
In Louis J. LeVesque v. WCAB (1970) 1 Cal. 3d 627, 637; 83 Cal. Rptr. 208,
the Supreme Court in reviewing the history of its opinions regarding review of WCJ
and WCAB’s decision opined that “In reviewing the evidence our legislative
mandate and sole obligation under [Labor Code] §5952 is to review the entire
record to determine whether the board’s conclusion was supported by substantial
evidence.” In Garza v. WCAB (1970) 35 Cal. Comp. Cas. 500, 503; 3 Cal. 3d 312,
the Supreme Court affirmed that “nevertheless, any award, order or decision of the
board must be supported by substantial medical evidence in light of the entire
record.”
In Western Electric Company v. WCAB (1979) 99 Cal. App. 3d 629, 643-644;
160 Cal. Rptr. 436, the Court of Appeal expounded upon “substantial evidence” by
setting forth that “Thus, if the board’s findings ‘are supported by inferences which
may fairly be drawn from evidence even though the evidence is susceptible of
opposing inferences, the reviewing court will not disturb the award.’” In Garza
(supra, page 503) the Supreme Court held that “…the test of substantiality must be
measured on the basis of the entire record rather than by isolating evidence that
supports the board and ignoring other relevant facts of record which rebut or
explain that evidence.”
Review of the totality of the record indicates that the applicant’s demand for
increased benefits rests on nothing other than her bare statements. Applicant has
been forced to admit that she has no documentary evidence substantiating $900.00
per week in income. Please be advised that applicant is claiming that she has earned
almost twice as she has reported in the year 2009. However, she has failed to
produce any proof of such earnings.
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6. An analogous situation arose in the case of Katherine Glass v. WCAB (1979)
44 Cal. Comp. Cas 495, 496; 1979 Cal. Wrk. Comp. Lexis 2590 where the applicant
petitioned the Court for a higher TTD rate based on multiple concurrent employment.
In that case, like in the instant case, the applicant failed to produce any documentary
evidence substantiating higher wages than those reported by the employer. In that
case, the Court held that “the record does not adequately establish the length of time
Petitioner worked for employers other than the Nite-Kap Motel or her average
weekly earnings from such employment. Therefore, petitioner has failed to show that
respondent board abused its discretion in applying Labor Code § 4453, subdivision
(a), rather than subdivision (d) to determine her average weekly earnings.”
In the instant case, we are presented with an applicant whose testimony is
entirely inconsistent with her pattern of behavior. The Court in Betty Choumas v.
WCAB (1977) 42 Cal. Comp. Cas. 173, 176; 1977 Cal. Wrk. Comp. Lexis 2605 was
confronted with a similar situation where a waitress alleged a higher rate of benefits
but failed to produce income tax returns or W-2 Forms. In that case, the Court
denied the waitress’ petition for writ of review of WCAB’s Order ruling that the
workers’ compensation judge properly determined that the waitress’ testimony on the
issue of her wages was not consistent and credible.
Please be advised that in the case of Ronald Honea v. Matson Navigation
Company (1972) 37 Cal. Comp. Cas. 908, 911; 1972 Cal. Wrk. Comp. Lexis 2170,
the Court only took into consideration the applicant’s wages as set forth on her Social
Security records firmly ruling that “if tips are considered, the total amount would be
in excess of the amount stated. But if plaintiff elects only to report his wages,
exclusive of tips, he should not be permitted to benefit by speculation as to the
amount of his tips.”
In Braewood Convalexcent Hopsital v. WCAB (1983) 34 Cal. 3d 159, 164;
193 Cal. Rptr. 157, the Supreme Court held that “The term ‘substantial evidence’
means evidence ‘which, if true, has probative force on the issues. It is more than a
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7. mere scintilla, and means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion… It must be reasonable in nature, credible, and
of solid value…’ It has been said that ‘The Substantial evidence test is not a vehicle
for a court to superimpose its judgment upon that of the Board.’ The court may not
simply isolate evidence which supports or disapproves the board’s conclusion and
ignore other relevant facts which rebut or explain the supporting evidence, but must
examine the entire record. The board’s findings on factual questions or conclusive if
supported by substantial evidence.”
As the above demonstrates, the totality of the record indicates that WCJ Robin
Brown’s decision is based on substantial medical evidence where she has perused the
entirety of the record and has concluded that the only reliable piece of evidence is the
2009 W-2 statement. Applicant’s assertions are nothing more than pure surmise and
conjecture and unsupported by anything resembling substantial evidence.
Consequently, Judge Brown’s decision is based on substantial evidence and
her Findings and Order should not be disturbed.
B. JUDGE BROWN’S DECISION CANNOT BE DISTURBED BECAUSE
APPLICANT HAS FAILED TO PRODUCE CONTRARY EVIDENCE
OF CONSIDERABLE SUBSTANTIALITY CONTRADICTING WCJ
BROWN’S DECISION WHICH IS BASED ON SUBSTANTIAL
EVIDENCE.
As demonstrated hereinabove, WCJ Robin Brown’s decision is based on
substantial evidence in the form of applicant’s undisputed deposition testimony as
well as the undisputed W-2 statement for the year 2009.
Applicant’s attorney has challenged this decision without producing any new
evidence that would contradict the record established at the June 7, 2011 Trial as set
forth on the Minutes of Hearing and the Summary of Evidence of that date.
Applicant’s attorney’s enthusiastic advocacy of his client’s cause has blinded him to
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8. the simple fact that his client’s demand is based on nothing more than conjecture and
speculation. As set forth hereinabove, the applicant has been very forthright with her
utter failure to maintain anything resembling a record of tips allegedly received at
Floyds 99. No reasonable party can accept applicant’s unsupported testimony which
would almost double her average weekly wages resulting in a TTD rate almost two
times her current rate of $280.47 per week.
Again, “the credibility of witnesses, the persuasiveness of the weight of the
evidence, and the resolving of conflicting inferences, are questions of fact.” (Western
Electric Company, page 644). The WCJ has indicated on her July 6, 2011 Opinion
on Decision that “applicant’s uncorroborated deposition testimony of receipt of
additional $500.00 per week in tips was not persuasive. Applicant failed to introduce
into evidence any documents to support her claim.” Judge Brown’s opinion is
eminently reasonable because to accept applicant’s testimony without any
corroborating evidence is to base the Award on conjecture, surmise and speculation
which would be unsustainable pursuant to the Supreme Court’s decision in The
Travelers Insurance Company v. Industrial Accident Commission (1949) 14 Cal.
Comp. Cs. 54, 55; 33 Cal. 2d 685, wherein the court held that “An award based
solely upon evidence tending to prove only a possibility of industrial causation is
conjectural and cannot be sustained.” Similarly, in the instant case, applicant’s
testimony tends to prove the possibility of receipt of $500.00 per week in tips.
However, this testimony is completely uncorroborated. Applicant cannot even
produce private memoranda documenting receipt of such monies. Since applicant
herself has admitted that she has no memoranda substantiating this allegation, her
own testimony is nothing more than conjecture and speculation. The WCJ’s Award
cannot be based on conjecture and speculation.
Consequently, in light of the foregoing, the WCJ’s factual findings must be
entitled to a great weight by the WCAB as it is supported by substantial evidence and
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9. should not be disregarded by the WCAB since applicant has failed to produce any
contrary evidence of considerable substantiality.
III.
CONCLUSION
WCJ Robin Brown has provided a Findings and Order based on substantial
evidence after examining the totality of the record and assessing the credibility and
persuasiveness of the evidence and resolving conflicting inferences. WCJ Brown’s
reasoned and cogent decision cannot be disturbed based on applicant’s over-
enthusiastic representations of her income which is, to date, completely unsupported
by anything resembling substantial evidence.
In light of the foregoing, applicant’s Petition for Reconsideration should be
denied and no relief should be granted pursuant thereto.
DATED: July 22, 2011 Respectfully submitted,
GRANCELL, LEBOVITZ, STANDER,
REUBENS AND THOMAS
A Professional Corporation
By:_____________________________
Aditya V. Barot
Attorneys for Defendant,
Illinois Midwest Insurance Agency,
LLC as administrator on behalf of Star
Insurance Company
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10. PROOF OF SERVICE
Re: MARCELA ACOSTA v. FLOYDS 99 BARBERSHOP
WCAB Case No: ADJ7518238; ADJ7518237
STATE OF CALIFORNIA )
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COUNTY OF LOS ANGELES )
I am employed in the aforesaid county, state of California; I am over the age
of 18 years and not a party to the within action; my business address is 200 North
Sepulveda Boulevard, Suite 1400, El Segundo, CA 90245-4359.
On July _____, 2011, I served the foregoing ANSWER TO APPLICANT'S
ATTORNEY'S PETITION FOR RECONSIDERATION, on the interested
parties in this action by placing a true copy thereof, enclosed in sealed envelopes,
and addressed as follows:
Workers' Compensation Appeals Board
6150 Van Nuys Blvd., Room 110
Van Nuys, CA 91401-3333
Mr. Devin Schluter
Illinois Midwest Insurance Agency, LLC
P.O. Box 13369
Springfield, IL 62791-3369
(Claim Number: 0216450-WCMSTR; UNASSIGNED)
Daniel V. Anaya
Law Office of Daniel V. Anaya
P.O. Box 4602
Sunland, CA 91040
Steven E. Garfinkle
Bradford & Barthel, LLP
18801 Ventura Blvd., Suite 200
Tarzana, CA 91356
I am readily familiar with the firm's practice of collection and processing
correspondence for mailing. Under that practice it would be deposited in the U.S.

11. Mail, with postage thereon fully prepaid, at El Segundo, California, in the ordinary
course of business. I am aware that on motion of the party served, service is
presumed invalid if the postal cancellation date or postage meter date is more than
one day after the date of deposit for mailing as stated in this affidavit.
I declare under penalty of perjury under the laws of the state of California
that the above is true and correct.
Executed on July _____, 2011, at El Segundo, California.
__________________________________
Ricky A. Perez
Declarant
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