We will begin today’s blog by asking our readers to answer four questions concerning the role an injured worker’s occupation plays when calculating a PD rating.
Question #1: If a worker performs two occupations for an employer, which occupation is used when rating PD?
Answer: The occupation producing the greater rating is used.
Question #2: What is the occupation of an employee whose job duties involve running on a grass field, kicking and passing a ball to team members without using their hands, and trying to place the ball into a defended goal?
Answer: If you said the employee is a soccer player, then you are correct.
Question #3: If our soccer player steps in a hole while playing on a grass field, resulting in a meniscus tear, what occupation would be used to rate PD if our soccer player has a second job for the same employer?
Answer: We just answered that question in item #1. We would use the occupation that produces the greater disability rating. In this particular case, our soccer player’s other occupation for the employer is that of a childcare worker. Her duties include playing soccer with the children during recess.
Question #4: What occupation do you think a work comp judge will use when our childcare worker/soccer player is rated for PD?
Answer: Unless challenged, the judge will select soccer player as the occupation. Keep in mind the worker was injured while playing soccer and was paid to do so. Using that occupation increases the value of PD by more than $34,000 over that of a childcare worker. Your mission, however, is to successfully argue for the judge to come up with a different conclusion. In doing so, the first step is to go online to the U.S. Department of Labor/Employment Training Administration (USDOL/ETA) website and access their free manual entitled “Occupational Information Network” (O*NET), which describes the job duties of several hundred different occupations. It is used by the Social Security Administration and by a variety of administrative law judges. Under Section 39-9011.00 of O*NET, the duties of a childcare worker include overseeing and playing games with children, such as soccer. Therefore, if argued correctly, the occupation of “day care worker” should be used when rating PD because playing soccer with the children is included in the definition of this occupation.
In closing, we wish to point out an equally troublesome situation that occurs when claims administrators are unaware that an occupational discrepancy exists, such as when a clever applicant attorney attempts to fool the claims administrator by listing an injured worker’s occupation as a night watchman instead of a security guard. Such a listing normally would not trigger any alarm bells, especially if the injury occurred at night. However, a night watchman will receive about $15,000 more in PD than a security guard. We at Friedman + Bartoumian are aware of the differences between various occupations and invite you to partner with us in the defense of your claims.
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