Which Rating Schedule Applies

Nittel vs. San Jose Sharks (2010), Cal. Wrk. Comp. P.D. Lexus 596 (2010 – panel decision)

The WCAB found that the 2005 Permanent Disability Rating Schedule applied to rate permanent disability incurred by a professional hockey player and that the exception to application of the 2005 schedule did not apply under Labor Code Section 4660(d).  The WCAB found that there was no evidence defendant had a duty to provide a Labor Code Section 4061 notice to applicant following payment of temporary disability benefits or salary continuation.

The court went on to describe the requirements of Section 4660(d) which indicates that the 2005 schedule should be applied to injuries on or after January 1, 2005 effective date of the Rating Schedule, subject to the specified exceptions for “compensable claims arising before January 1, 2005…”  The court stated that the 1997 Rating Schedule may only be used to rate permanent disability arising from compensable injuries that occur prior to January 1, 2005 were one of the exceptions described in the third sentence of section 4660(d) has been established.  If none of the exceptions exist than the 2005 Rating Schedule applies.

In this particular case applicant did not carry his burden of proof to establish that he received salary continuation in lieu of temporary disability benefits for the injuries he alleged and therefore the 2005 Rating Schedule applied.