XYBERNET, INC.; HARBOR SPECIALTY INSURANCE COMPANY TIG SPECIALTY INSURANCE, SHANNON HUGHES, WORKERS COMPENSATION APPEALS BOARDSTATE OF CALIFORNIASHANNON HUGHES,, Applicant,vs.XYBERNET, INC.; HARBOR SPECIALTY INSURANCE COMPANY TIG SPECIALTY INSURANCE, .Defendant(s).Case Nos.SDO 0336102SD00336144OPINION AND ORDERDENYING PETITIONFOR RECONSIDERATION Defendant, Xybemet, Inc., by and through its insurer, Employers Elite Insurance Services, seeks reconsideration of the Joint Findings and Award, issued May 30, 2007, in which a workers’ compensation administrative law judge (WCJ) found that as a consequence of her two admitted cumulative trauma injuries to her neck, back, right upper extremity and right hand, applicant. Shannon Hughes, was entitled to an award of 32% permanent disability, finding the 1997 Permanent Disability Rating Schedule applicable to the rating of permanent disability in this case. The WCJ concluded this case came within two exceptions to the application of the new 2005 Rating Schedule enumerated in Labor Code section 4660(d). First, the WCJ found defendant’s December 20, 2004 service of a Notice of Denial of Disability Benefits met the exception triggered when notice is required to be provided pursuant to section 4061. Second, the WCJ found an exception based upon defendant’s retroactive payment of permanent disability indemnity in September of 2005 for a period in March to September 2004. The WCJ further justified this finding based upon the fact that the retroactive payment was made after applicant’s return to her usual and customary work duties after performing modified work. Defendant contends the WCJ erred in holding the 1997 Rating Schedule applies in this case. Defendant argues that the December 20, 2004 letter denying permanent disability benefits , was not a notice required by section 4061, and thus cannot qualify as an exception under section 4660(d), as it did not accompany a final temporary disability
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