Wednesday, October 22, 2014

Occupational Codes and Ratings

One of the concepts that got me through law school was that there was always a rule, then there were exceptions to the rule.

And of course, being the academic study of law, there were always exceptions to the exceptions to the rule - but when one really examined it these exceptions to the exceptions were really just the basic rule stated another way.

So I remembered this basic concept and that minimized the amount of rote memorization I would need to get past a test - usually I didn't even need to know the name of the exception to the exception, but just needed to state the rule properly given the fact pattern presented.

One of those exceptions to the exception of the rule in workers' compensation is the "dual occupation doctrine."

The "dual occupation doctrine" says that when a worker's duties embrace two forms of occupation, the worker is entitled to be rated for the occupation that carries the highest percentage of disability. This comes up when the job classifications in the permanent disability rating schedule do not neatly match the actual duties performed by the injured worker.

The First District Court of Appeal in California is going to tackle this doctrine as applied to the modern work place where a manager was required, as part of his normal work activities, to use a compute keyboard on a regular basis, which in his case would raise his permanent disability rating if he were in an occupational code that took into account high keyboarding.

Pope Powell had been a fleet operations manager for the San Francisco Public Utilities Commission, making between $108,000 to $115,000 per year. He was responsible for the maintenance and fueling of a fleet of 1,250 vehicles, managing a $10 million budget and supervising five employees.

Powell said he relied on a computer, a mouse, a "10-key" tool for budgeting and keeping track of expenditures in his division and a calculator to get his job done.

He testified that he regularly spent 80% to 85% of his time on his computer while at work, spending at least five hours a day hunched over his terminal.
Boscoe doesn't even have one occupation, let alone a dual occupation....

In September 2011, his employer accepted his claim for an industrial injury to his arms and shoulders from his extensive computer use.

A workers' compensation judge determined that his injuries had caused him a permanent disability. The judge rated Powell's disability using the occupational variant provided by the 2005 Schedule for Rating Permanent Disabilities for occupational group 212.

That classification applies to "mostly professional and medical occupations," involving "work predominantly performed indoors."

Using the occupational variant for this group, the judge arrived at a disability rating of 62% for Powell.

Powell sought reconsideration of the judge's ruling by the Workers' Compensation Appeals Board, arguing that his rating should have been based on the variant for occupational group 112.

The Permanent Disability Rating Schedule describes occupational group 112 as "mostly clerical occupations," involving the "highest demand for use of keyboard (and) prolonged sitting." It lists "billing clerk, computer keyboard operator, (and) secretary" as examples of occupations falling within this category.

The WCJ recommended that the WCAB deny reconsideration. While the judge acknowledged that Powell's job duties "undoubtedly necessitates extensive keyboarding," the judge reasoned that this "clerical function is not at the core of his job."
A divided WCAB panel agreed.

The commissioners reasoned that Powell's heavy computer use simply "reflects the transition in the modem office environment," and that occupation code 212 contemplates use of a computer by a professional or managerial employee.

Commissioner Marguerite Sweeney dissented, stating Powell "had two different sets of job duties that were both integral to his job; his managerial duties and his clerical duties" and thus the higher rating occupational code should be used.

Sweeney also speculated that the WCAB will see more contests of this nature as the work environment for most jobs shifts to reflect the Information Age, where even some of the most basic job functions involve considerable computer usage.

The 1st DCA accepted the case last week for review.

The long standing rule in California is that, just like in assessing employer premiums, the highest rating job functions are to be used in determining final value, and I don't see this case as any different - the "dual occupation rule" is just the regular rule restated to embrace an exception to the exception...

For instance, if a WorkCompCentral inside sales person actually went on the road to visit customers on a regular basis, even though that was not his principal mode of sales work, he would be rated for premium purposes as an outside sales person, reflecting the higher risk of travel.

Likewise, that same employee should, for permanent disability rating purposes, receive the benefit of such classification if the injury sustained warranted a different rating for inside sales versus outside sales, particularly if the job required functions that are a regular part of the job but aren't reflected in the category description in the rating manual for a particular occupation.

It may be time soon (again) for the Division of Workers' Compensation to review the rating schedule (which under prior law was supposed to have been updated regularly, but never was, and that requirement was repealed with SB 863) to make sure that all job classifications reflect the New Economy and Information Age.

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