Pope Powell sustained an industrial injury to his shoulders and elbows while employed by respondent City and County of San Francisco. The injury caused permanent partial disability. The parties disputed the occupational group to be used in the rating formula for his injury.
Powell’s job title was Director of Fleet Management and Operations. He supervised five employees; dealt with budgets and requests for proposals; and wrote contracts, policies, and procedures. According to Powell’s undisputed testimony, to perform his job duties he spent 80 to 85 percent of his time on a computer performing tasks such as emailing, creating spreadsheets and budgets, and drafting various documents. The parties disputed the appropriate occupational group for Powell. Powell contended occupational group 112 applied; the City contended occupational group 212 applied. The WCJ agreed with the City, and a majority of the Board affirmed the WCJ. The dissenting Board member contended that a third group, 211, was the most appropriate.
The WCJ and the WCAB awarded benefits based upon group 212, which is undisputedly appropriate for Powell’s “managerial” duties: “Mostly Professional and Medical Occupations [¶] Work predominantly performed indoors, but may require driving to locations of business; less use of hands than 211; slightly higher demands on spine than 210 and 211. [¶] Typical occupations: Chemist, Dialysis Technician, Secondary School Teacher.” (Schedule, supra, at p. 3-30.)
Group 112, which Powell argues is the most appropriate: “Mostly Clerical Occupations [¶] Highest demand for use of keyboard; prolonged sitting. [¶] Typical occupations: Billing Clerk, Computer Keyboard Operator, Secretary.” (Schedule, supra, at p. 3-29.)
Group 211, which the dissenting Board member found the most appropriate: “Mostly Clerical Occupations [¶] Emphasis on frequent fingering, handling, and possibly some keyboard work; spine and leg demands similar to 210. [¶] Typical occupations: Bank clerk, Inventory clerk, License clerk.” (Schedule, supra, at p. 3-30.)
The Board majority affirmed the WCJ’s classification of Powell in group 212, quoting with approval from the WCJ’s opinion. The dissenting Board member disagreed. While agreeing that Powell’s job was “managerial in nature,” the dissenting member found “[h]is computer use . . . was necessary and integral to the successful performance of the duties and responsibilities inherent in his position.” Applying the dual occupation rule, the dissenting member found occupational group 211 “the most appropriate.” The Court of Appeal reversed in the unpublished case of Powell v WCAB.
More than one occupational group may apply to an applicant’s job. In such cases, “[t]he employee is entitled to be rated for the occupation which carries the highest factor in the computation of disability. Labor Code section 3202 provides that the provisions of the Workmen’s Compensation Act ‘shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.’ It has been determined that where the duties of the employee embrace the duties of two forms of occupation, the rating should be for the occupation which carries the higher percentage.” (Dalen v. Workmen’s Comp. Appeals Bd. (1972) 26 Cal.App.3d 497, 505-506 (Dalen); accord, National Kinney v. Workers’ Comp. Appeals Bd. (1980) 113 Cal.App.3d 203, 215 (National Kinney).) “[N]o precise percentage of time for [performing the duties of the higher percentage occupation group] is required but rather the pertinent inquiry is whether [performance of those duties] is an ‘integral part of the worker’s occupation.’ ” (National Kinney, supra, at p. 216.)
The Court of Appeal agreed with the dissenting Board member that the proper focus is on the claimant’s physical work activities. The Board majority’s statements that Powell’s ” ‘integral job duties . . . were managerial in nature’ ” and his “job required the use of a computer to fulfill the managerial responsibilities inherent in [his] position . . . , not as his core task,” erroneously focus on a characterization of his job duties as “managerial.” Group 212, which contemplates some small amount of keyboard use, is only partially appropriate in classifying Powell, who spent a substantial amount of his work time on a computer or other keyboard.