How Occupational Group Affects Workers’ Comp Benefits

• Oct 22, 2024
• Blog
• Michael Burgis & Associates, P.C

Employers often misrepresent an injured worker’s job duties, which can significantly affect their workers’ comp claim—potentially costing them hundreds of thousands or even millions of dollars in benefits.

Michael Burgis explains below that an injured worker’s compensation is determined by their overall percentage of permanent disability, which is calculated using various factors, including occupational group, occupational variant, job duties, and the physical demands of their roles.

The actual tasks performed by the worker are what should dictate their classification, rather than their job title or description. This distinction can lead to different multipliers affecting their compensation.

If you are looking for legal help with your workers’ compensation claim, contact MB&A today.

Transcript: 

Hi. What if I told you that in California Workers’ Compensation, an employer often misrepresents what an injured worker’s job duties are, and that can lead to a loss of hundreds of thousands, sometimes millions of dollars of benefits in workers’ comp.

Hi, my name is Michael Burgis. I’m a legal certified specialist in California Workers’ Compensation. I’m a trial attorney and I’m the managing attorney of MB&A.

Workers’ Comp Case: Gunderson v. County of Kern

In this video, I want to talk about a recent case that has come down called Gunderson v. County of Kern. In this case, there are two fundamental holdings, both very different. One deals with an occupational variant and a job title and job description. The other is dealing with the admissibility of surveillance or subrosa.

Occupational Group and Occupational Variant

In this video, I’m only going to be talking about the occupational aspect. If you want to know the secondary holding, please click the description, and I have a separate video breaking that down.

But in this video, I want to talk about the primary holding, which deals with the occupational variant. Before I get into the holding, I need to lay some foundation.

Injured Worker’s Compensation Is Based on Percentage of Permanent Disability

First, for an injured worker, the compensation is based on your overall percentage of permanent disability. A doctor provides something called a Whole Person Impairment. That impairment is adjusted for a few variables like age, occupational variant, and diminished future earnings capacity variable.

Multipliers Based on Job Duties

All that’s complicated, but here’s the gist. A back injury to a loader and unloader creates a bigger multiplier than a back injury for a secretary that only does data entry, or a lawyer or something like that. So it’s very important to understand that the greater the physicality of the job, for the orthopedic injuries, will likely have a multiplier. For psychiatric injuries, more of a thinking job, will have a multiplier.

And fundamentally, an injured worker is entitled to the occupational variant that accurately describes their job duties that produces the biggest increase or the biggest multiplier on that impairment and the greatest overall permanent disability.

Job Title vs. Job Duties

In this particular case, there’s the difference between a life pension case and under life pension case, which means above 70% or below 70%. And that nuance was very important because the defendant, in this case, County of Kern, was arguing based on the person’s job description or job title, rather. And that would have produced an under life pension award.

In this case, the applicant or applicant attorney was arguing that the occupational variant of 470, a Senior Information Systems Analyst, was appropriate based on her job duties. And those job duties were different than the job title. Ultimately, it’s the concept of substance over form.

It doesn’t matter what the employer said your job is, or what the title is, or what it says on your paycheck for your title, or the name on your door or office. What matters is, what did this person do? And if they did a loading and unloading or a repetitive physical job, then guess what? They’re entitled to that occupational variant regardless of what their job title was.

Think of it this way: Trader Joe’s, Best Buy, all these people, the supervisors themselves, who are classified as supervisors, they still have to load and unload and do the cashiering just like everyone else. So if they had a back injury and the title was supervisor, that would produce a lower multiplier.

But if you got testimony and evidence into the record to establish that they loaded and unloaded on a repetitive basis, that would create a much greater multiplier on the back injury. So this holding isn’t groundbreaking. This is something we’ve all known already, but it just reaffirms this: an injured worker is not bound by their job title, not even by their job description. It’s based on evidence establishing what they actually did.

And again, pursuant to something called Labor Code § 3202, injuries are to be liberally construed to benefit the injured worker. So the injured worker is entitled to the occupational variant, the job description, if you will, that would produce the greatest multiplier impact on their overall disability.

It’s very important, again, that you understand this because this can make a big difference in compensation. In this case, the difference between a life pension and not life pension, which can be hundreds of thousands of dollars in benefits to an injured worker based on an occupational variant.

So again, this case is Gunderson v. County of Kern. The other holding is regarding the admissibility of subrosa surveillance videos, which again, will be in a separate video clip.

Contact MB&A for Your Workers’ Compensation Case

If you find this video to be helpful or informative, please like, subscribe, and share. We put out lots of new content breaking down all the case law to make sure that we can help take care of injured workers. If you have any questions or concerns, my office is standing by. We have the answers and we’re here to help.