Butcher or meat cutter? Employee’s role will determine permanent disability rating

The Workers’ Compensation Appeals Board of California found substantial evidence that Safeway’s employee sustained injuries arising out of and in the course of employment (AOE/COE) to his knees, elbows, and wrists.

Safeway – defendant in the case of Kelly vs. Safeway, permissibly self-insured – hired the applicant. The applicant claimed workplace injuries to the cervical spine, thoracic spine, lumbar spine, bilateral knees, bilateral elbows, and bilateral wrists.

The neurological qualified medical evaluator (QME) found that the applicant sustained cumulative trauma injuries to these body parts. The doctor considered the applicant’s condition permanent and stationary. He provided whole person impairment ratings for the injured body parts.

Last October, the workers’ compensation administrative law judge issued an order finding injuries AOE/COE to the cervical spine, thoracic spine, lumbar spine, bilateral knees, bilateral elbows, and bilateral wrists.

The judge then held that butchers had the occupational code of 420. The judge ordered the parties to further develop the record to determine permanent disability for both knees. Safeway asked for reconsideration of the judge’s decision.

A panel of the Workers’ Compensation Appeals Board granted reconsideration and rescinded the judge’s order. The panel issued a new decision, which retained the finding of injuries AOE/COE to all the same body parts but found insufficient evidence to determine the occupational group number.

Substantial evidence supports injuries AOE/COE to knees, elbows, wrists

The neurological QME thoroughly and completely evaluated the applicant, reviewed voluminous medical records, and obtained additional diagnostic testing, the panel said. Without medical evidence challenging the QME’s findings, the panel had to accept them as substantial medical evidence supporting industrial causation for the employee’s injuries.

The panel gave great weight to the judge’s finding that the applicant’s testimony was credible since the judge had the opportunity to observe the witness’s demeanor. The panel found no evidence that would justify rejecting the judge’s credibility findings.

Issue deferred pending further development of record

The panel deferred the issue of permanent disability for all body parts pending further development of the record relating to the occupational group number and permanent disability for the knees.

The applicant claimed that he was a butcher with an occupational code of 420 under the 2005 Permanent Disability Rating Schedule (PDRS). Safeway disagreed and said that the applicant was a meat cutter with an occupational code of 322.

According to the PDRS, occupational group number 322 applied to food preparation and service occupations and was categorized as “heavy hand intensive” under the strength designator. Occupational group number 420 applied to meat processing and was designated as medium.

A supervisor at Safeway testified at trial. The supervisor disagreed with certain parts of the applicant’s testimony, including about how much overhead reaching was required and whether the applicant would cut animals.

The panel found insufficient evidence to decide whether the applicant’s occupational group number was 322 or 420, given the conflict between the applicant’s and the supervisor’s testimonies. The parties should continue developing the record on this issue, the panel said.