Opinion
NOT TO BE PUBLISHED
Petition for writ of review from a decision of the Workers’ Compensation Appeals Board WCAB Case Nos. ADJ 595875, AHM 0145185.
Leviton, Diaz & Ginocchio and Christopher C. Ginocchio for Petitioner.
Bredfeldt, Odukoya & Suarez and Jarod Parker for Respondents San Jose Sharks and Chubb Services Corporation.
No appearance for Respondent Workers’ Compensation Appeals Board.
OPINION
RYLAARSDAM, ACTING P.J.
In April of 2004 the Legislature enacted a comprehensive reform of the workers’ compensation laws under Senate Bill No. 899. As part of this reform the Legislature amended Labor Code section 4660 (which governs the determination of permanent disability) and required the implementation of a new schedule incorporating the American Medical Association Guides to the Evaluation of Permanent Impairment (5th ed.). (Lab. Code, § 4660, subd. (b)(1); all statutory references are to the Labor Code.) The 2005 revised permanent disability rating schedule applies to all compensable claims arising before January 1, 2005, unless one of three exceptions is satisfied. (§ 4660, subd. (d).) The relevant exception here arises “when the employer is... required to provide the notice required by [s]ection 4061 to the injured worker.” (Ibid.)
Section 4061 notice “‘advises the employee of the employer’s position regarding the entitlement to permanent disability at the time the last payment of temporary disability is made.’ [Citation.]” (Tanimura & Antle v. Workers’ Comp. Appeals Bd. (2007) 157 Cal.App.4th 1489, 1494.) California Code of Regulations, Title 8, section 9814 requires an employer to give section 4061 notice to an employee when it “provides salary or other payments in lieu of or in excess of temporary payment indemnity.”
Adam Nittel suffered numerous job-related injuries during his career as a professional hockey player for the San Jose Sharks. At issue in his case is whether the 2005 schedule for rating permanent disability applied, even though his injuries predated the enactment of that legislation. Because the Sharks paid Nittel salary continuation under his contract during the time he was on injured reserve status, we conclude that the facts of this case fall squarely within the statutory “notice” exception and the Board should have awarded Nittel benefits based on the 1997 schedule for rating permanent disabilities that was in effect prior to January 1, 2005. Accordingly, we annul and remand.
FACTS AND PROCEDURAL BACKGROUND
Nittel’s tenure with the Sharks began in 1997 and ended in 2002. On June 9, 2007, he filed a claim for workers’ compensation benefits alleging a cumulative trauma injury during the period August 20, 1997, through June 10, 2002, to multiple parts of his body.
His case was tried and the workers’ compensation judge (wcj) found Nittel sustained injury arising out of the course of his employment to various body parts. This equated to a permanent disability award of 100 percent equivalent to weekly payments of $490.00 for life. The wcj noted Nittel provided credible testimony as to his playing professional hockey in the National Hockey League as a right wing. He testified as to what was required of his position both in practices and games, whether for the Sharks in California or when farmed out to a minor league team while employed by the Sharks. As a right wing or “enforcer, ” Nittel was required to fight and hit as well as to shoot and pass the hockey puck. While playing for the Sharks he was hit in the head almost every day, whether in practice or in the game. He played with his nose broken and was knocked unconscious. During his career with the Sharks Nittel suffered concussions and injuries to his ears, nose, face, teeth, jaw, neck, arms, back, and hips. He gave and received “body checks, ” was “slashed with sticks” and “hit from behind, ” fell to the ice, and “smashed the boards.” Sharks’ personnel records noted an injury to Nittel’s left wrist on September 13, 2000, while playing in California, and a mandible fracture on October 28, 2000, while playing in Fayette, Kentucky, which also caused injury to other parts of his body. Nittel was on the injured reserve list (IR) almost every season he played for the Sharks; between 1997 and June 2002 he was on the IR for about two to three months per season.
At the time of trial he could not close his jaws to chew food (forcing him to rely on drinking his food in liquid form), had hearing loss and ringing in both ears, neck injury, shoulder pain, elbows that locked up, limited wrist mobility, back and hip pain, swollen ankles, legs that would collapse and give out requiring him to use a cane, and frequent nosebleeds. He was 31 years old at the time of trial.
Nittel testified he was treated for his injuries by team trainers and physicians as well as being referred to specialists for surgeries to his left wrist and both knees. During the proceedings below Nittel was examined by four qualified medical examiners. The wcj found the medical histories contained in the doctors’ reports to be well reasoned and consistent with Nittel’s testimony.
During 2001 Nittel missed time from work due to the surgery on his left wrist. He returned to regular, unrestricted play on September 18, 2001, when he was cleared by a physician. In determining whether to apply the 1997 permanent disability rating schedule or the 2005 schedule the wcj noted the Sharks were required to provide Nittel with the notices regarding permanent disability indemnity under section 4061. The wcj determined that, as the Sharks failed to provide Nittel with the required notice, his case fell within one of the three exceptions set forth in section 4660, subdivision (d), and thus the 1997 rating schedule applied to the determination of his permanent disability.
The Sharks and their insurer petitioned the Board for reconsideration of the wcj’s award, setting forth various assignments of error. The only issue relevant for purposes of this appeal was their contention the wcj erred in applying the 1997 permanent disability rating schedule instead of using the 2005 American Medical Association’s Guides “because there [was] no evidence of the permanent disability for the cumulative trauma injury between 1997 and 2002.” In the report on reconsideration the wcj recommended the petition be denied. The wcj cited to sections 4660, subdivision (d) and section 4061, subdivision (a), and also to California Code of Regulations, Title 8, section 9814, explaining that the Sharks were required to provide Nittel with section 4061 notice after he was released to play without restrictions in September of 2001. In that regard, the 1997 permanent disability rating schedule applied to the determination of his permanent disability.
The wcj noted “[a]pplicant testified he was on the injured reserve almost every season he played for the San Jose Sharks and between 1997 - 2002 he would say he was on injured reserve two to three months most every season.... The Injury/Illness report dated 9-13-00 notes an injury on 9-13-00 and provides a history of treatment from 9-14-00 through 9-18-01 which noted he was ‘cleared by Dr. Brody’ and is doing well.... Based on Applicant’s testimony and the medical documentation, the [wcj] found that the exception that applies under [section] 4660[, subdivision] (d) was that [d]efendant was required to provide the Labor Code section 4061 notice to Applicant after Dr. Brody released Applicant to full duty on 9-18-01 and therefore the 1997 PDRS applied to the determination of his permanent disability.”
The Board granted reconsideration pursuant to the Sharks’ petition. It deferred consideration of three of the Sharks’ seven assignments of error and affirmed the wcj’s decision on the other three. As to the seventh, the Board amended the decision, finding that the 2005 schedule for rating permanent disabilities applied. It noted that absent one of the exceptions in the section 4660, subdivision (d), the 2005 schedule applied to a pre-January 1, 2005 injury.
The Board found no evidence to satisfy either of the first two exceptions set forth in section 4660, subdivision (d), i.e., a comprehensive medical-legal report or a report by a treating physician showing a permanent disability existing before January 1, 2005. As to the third exception, the Board found that since Nittel did not file his compensation claim alleging injury until June 29, 2007, the Sharks did not have an obligation to pay temporary disability indemnity or to send section 4061 notice.
Nittel petitioned for reconsideration, arguing the Board provided no statutory, regulatory, or case law to support its ruling that an employer has no obligation to provide notice of rights to temporary disability, permanent disability, or a claim form until that person has filed an application for adjudication of claim.
The Board denied Nittel’s petition. It agreed with Nittel that filing of an application for adjudication of claim was not a prerequisite to the duty to provide section 4061 notice if the Sharks was otherwise legally required to do so. However, the Board did not agree the Sharks had a duty to provide section 4061 notice in 2001. “The question here is whether the employer was required to provide applicant with section 4061 notice prior to January 1, 2005. Administrative Director Rule 9814 requires an employer to comply with section 4061 notice requirements ‘where an employer provides salary or other payments in lieu of or in excess of temporary disability indemnity.’ Based on our review of the record, we are not persuaded that the 4061 notice requirement was triggered in this case, even in light of Administrative Director Rule 9814, because applicant did not carry his burden to establish that he received salary continuation in 2001.”
Nittel argued he proved his receipt of salary continuation by the following evidence: (1) his contract that showed his 2001 salary was $40,000; (2) his tax return for 2001 showed the Sharks paid him $40,375.03; and (3) he testified that although he was on injured reserve status in 2001 he was still paid his full salary under his contract.
The Board’s review of Nittel’s National Hockey League Standard Player’s Contract showed his full salary for 2001/2002 was $400,000. The contract stated that if Nittel was ‘“assigned, exchanged, loaned or otherwise transferred to a Club in another League, ”’ he would be paid $40,000 in the minor league for 2001/2002. The Board noted the payment history showed Nittel was paid $40,375.03 for the year 2001, confirming he played in the minor leagues. The Board concluded this refuted Nittel’s claim that he received continuation of his full salary of $400,000 under the contract. In addition, the Board found the contract did not provide for “salary continuation” and Nittel did not testify that he received salary continuation while on the IR. For those reasons, the Board affirmed its decision that the 2005 ratings schedule applied to this case.
DISCUSSION
The interpretation of a statute is a question of law, which this court reviews de novo. (Martino v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 485, 489.) Unless clearly erroneous, however, the Board’s interpretation of workers’ compensation laws is entitled to great weight. (Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1331.) The Board’s conclusion in this case is clearly erroneous.
Senate Bill No. 899 “overhauled” the Workers’ Compensation Laws. (Brodie v. Workers’ Comp. Appeals Bd., supra, 40 Cal.4th 1313, 1323.) “As part of its reform package the Legislature amended section 4660 to require regular revisions of the permanent disability rating schedule. A new rating schedule incorporating the American Medical Association Guides to the Evaluation of Permanent Impairment (5th ed.) went into effect on January 1, 2005, superseding the 1997 schedule. [Citations.] In many cases, including the case at bar, the revision to the schedule for rating permanent disabilities reduces the amount a worker will be compensated for a permanent disability. [Citation.]” (Genlyte Group, LLC v. Workers’ Comp. Appeals Bd. (2008) 158 Cal.App.4th 705, 715-716, fns. omitted.)
Section 4660, subdivision (d) provides: “For compensable claims arising before January 1, 2005, the schedule as revised... shall apply to the determination of permanent disabilities when there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability, or when the employer is not required to provide the notice required by [s]ection 4061 to the injured worker.”
Section 4061 provides in part: “(a) Together with the last payment of temporary disability indemnity, the employer shall... provide the employee one of the following: [¶] (1) Notice either that no permanent disability indemnity will be paid because the employer alleges the employee has no permanent impairment or limitations resulting from the injury or notice of the amount of permanent disability indemnity determined by the employer to be payable. The notice shall include information concerning how the employee may obtain a formal medical evaluation pursuant to subdivision (c) or (d) if he or she disagrees with the position taken by the employer.... If the employer determines permanent disability indemnity is payable, the employer shall advise the employee of the amount determined payable and the basis on which the determination was made and whether there is need for continuing medical care. [¶] (2) Notice that permanent disability indemnity may be or is payable, but that the amount cannot be determined because the employee’s medical condition is not yet permanent and stationary. The notice shall advise the employee that his or her medical condition will be monitored until it is permanent and stationary....”
California Code of Regulations, Title 8, section 9814 (“Salary Continuation”) provides: “In relation to periods of temporary disability, where an employer provides salary or other payments in lieu of or in excess of temporary disability indemnity, the claims administrator or employer shall comply with the notice requirements of this article which apply to temporary disability. In addition, the claims administrator or employer shall include a full explanation of the salary continuation plan with the initial notice.”
As discussed above, the Legislature intended for the 2005 schedule to apply prospectively. That definition, however, includes claims arising before the January 1, 2005, effective date of the statute where “there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability, or when the employer is not required to provide the notice required by section 4061....” (§ 4660, subd. (d).) Accordingly, if the employer was required to provide section 4061 notice, the injured worker’s permanent disability is to be calculated using the earlier 1997 schedule. (Zenith Ins. Co. v. Workers’ Comp. Appeals Bd. (2007) 153 Cal.App.4th 461, 464.) California Code of Regulations, Title 8, section 9814 requires such notice where the employer provides salary continuation in place of temporary disability indemnity.
The Board’s August 23, 2010, opinion and order granting reconsideration concluded because Nittel failed to file his application for adjudication of claim until June 29, 2007, the Sharks were under no obligation to pay temporary disability indemnity or to issue section 4061 notice. After Nittel petitioned for reconsideration of that decision, the Board changed the basis for its denial and concluded Nittel failed to carry his burden of proof of showing applicability of the 1997 schedule.
Section 3202.5 provides that “[a]ll parties and lien claimants shall meet the evidentiary burden of proof on all issues by a preponderance of the evidence in order that all parties are considered equal before the law. ‘Preponderance of the evidence’ means that evidence that, when weighed with that opposed to it, has more convincing force and the greater probability of truth. When weighing the evidence, the test is not the relative number of witnesses, but the relative convincing force of the evidence.”
The Board had the following evidence before it. Nittel’s National Hockey League Standard Players Contract showed a salary of $400,000 for the 2001/2002 season unless the services of the player were “assigned, exchanged, loaned or otherwise transferred to a Club in another league, ” at which time the player “shall only be paid at an annual salary rate”of “$40,000 in the minor league” for the 2001/2002 season. Nittel’s credible, uncontroverted testimony was that he played the entire 2001/2002 season in the American Hockey League for the Cleveland Barons, a minor league team. Nittel’s 2001 W-2 wage and tax statement shows $40,037.03 in wages paid by his employer, the Sharks. It is itemized as $40,000 in “salary pay” and $375 in “other earnings.” Finally, a form entitled “Employer’s Report of Occupational Injury or Illness” (capitalization omitted) dated November 2, 2000, was before the Board. The employer is listed as the San Jose Sharks. It reports that the employee, Nittel, a professional ice hockey player, was injured on October 28, 2000 while playing hockey and that he could not work for at least one full day after the injury. It states he was paid full wages for the date of injury, and, in box number 26, that his salary was being continued. It was signed by a Sharks’ assistant athletic trainer.
The Sharks’ contention on appeal, echoing the Board’s conclusion that Nittel did not receive salary continuation because he did not receive his full salary of $400,000, is untenable in light of the evidence before the Board. The problem with the Board’s analysis is its failure to consider the clear language of the contract stating “[a]nd it is further mutually agreed that if the Contract and rights to the services of the Player are assigned, exchanged, loaned or otherwise transferred to a Club in another League, the Player shall only be paid at an annual salary rate of [$40,000].” Even if the player was shipped out to the minor leagues, the player would be paid a reduced salary but a contractual salary nonetheless.
Nittel argues, and the Sharks conceded during oral argument, that his contract with the Sharks was a “two-way” contract. Nittel had only to receive an annual salary of $400,000 for playing in the National Hockey League for the Sharks or $40,000 for being assigned to play for a club in the minor leagues for that same season. The contract, Nittel’s W-2 statement, the Sharks’ personnel injury report, and Nittel’s uncontroverted testimony are conclusive evidence that the Sharks paid Nittel salary continuation while he was injured.
We conclude that Nittel satisfied his evidentiary burden of proving by a preponderance of evidence that he received salary continuation for the 2001/2002 season, which triggered the Sharks’ duty to provide him with notice under section 4061. Their failure to do so qualifies as an exception under section 4660, subdivision (d).
DISPOSITION
For the above reasons, the Workers’ Compensation Appeals Board’s opinion and order denying the petition for reconsideration is annulled. The case is remanded to award Nittel compensation in accordance with the decision of the worker’s compensation judge. The parties shall bear their own costs in the proceedings before this court.
WE CONCUR: O’LEARY, J., MOORE, J.