Appellate Cases

Over the years Mr. Gearheart has successfully litigated many appellate workers’ compensation cases, some of which, as “impact cases” set new precedents in California Workers’ Compensation law.  A partial list of his appellate cases follows:

Armando Consani v. WCAB (1990) Writ Den., 55 CCC 312, but after the CSC ordered Review, see opinion at 56 CCC 45, 227 CalApp. 3d 12, 277 Cal. Rptr. 619 (1991).  (Penalty for unreasonable delay of medical care under L.C. Section 5814 applies to all medical treatment billings past present and future not just amount unreasonably delayed.)

Chevron USA v. WCAB (Jelonek) (1991) Writ Den., 56 CCC 314  (Upholding finding of illegal discrimination due to industrial injury under L.C. section 132a against Chevron.)

. Judy Ferguson v. WCAB, Raley’s Supermarket (1994) Writ Denied 59 CCC 284,  but after the CSC ordered Review, see the opinion at 60 CCC 275, 33 Cal. App. 4th 1613, 39 Cal. Rptr. 2d 806(1995). (Held award of increased compensation for employer Serious and Willful Misconduct is a 1/2 increase in ALL benefits including medical, med-legal, and voc rehab and not just indemnity, a landmark case.)

Dept. Of Corporations v. WCAB (Daniell) (1996) Writ den., 61 CCC 1469 (combining disabilities from different injuries with same employer resulting in increase in PD award upheld.)

Safeway Stores, Inc. v. WCAB (Joseph Marion) (1998) Writ Den., 63 CCC 660.  (Upheld WCAB finding that stroke was AOE/COE, causing total permanent disability.)

 Contra Costa County Health Services/Merrithew Memorial Hospital v. W.C.A.B. (Brimmer-Veal) (1st–AO83507) (1998) 63 CCC 1163.   (Court upheld Board finding that employer had discriminated against employee in violation of Labor Code section 132a, by denying merit increase in retaliation for industrial injury. Back pay and $10,000.00 penalty awarded.)

City of Martinez v. WCAB (Bonito) (2000) 65 CCC 1368  (Where applicant police officer did not consent to disability retirement, she was entitled to balance of one full year of L.C. Section 4850 benefits after she was medically P & S while enrolled in vocational rehabilitation.)

McCabe v. Fremont Ins. (2001) Order of Removal and Decision after Removal reported at 29 CWCR 223.  (Defendant may not inquire into psychiatric history or treatment at applicant’s deposition where applicant has only put physical injury in issue, notwithstanding pain management treatment with psychologist for injury and 2 year old QME report saying psychiatric evaluation would be helpful. 2 to 1 Board panel decision.)

 

Fenn v. WCAB and City of Anaheim  (2003) 107 Cal. App. 4th 1292, 68 CCC 560. The Court of Appeal affirmed the WCAB, holding that a firefighter is not entitled to have his FLSA overtime pay included as part of his L.C. Section 4850 pay “in lieu of TTD” even though he would have earned such pay but for the industrial injury.  Appeared as Amicus Curiae for the California Applicants’ Attorney Assn. in support of Petitioner Fenn.

 

Brodie v. W.C.A.B.  (2007), 40 Cal. 4th 1313, 72 CCC 565.  The California Supreme Court reversed the Court of Appeal, which had reversed the W.C.A.B finding that so-called “formula A” apportionment as articulated in the case of Fuentes v. W.C.A.B (1976) 16 Cal. 3d 1, 41 CCC 42 remained the correct method to calculate the dollars owed after apportionment of permanent disability notwithstanding the 2004 amendments to the apportionment statutes.   This unfortunate decision reversed our victory before the Court of Appeal in this case.

California Unemployment Insurance Appeals Board, State of California, legally         uninsured, adjusted by State Compensation Insurance Fund v. W.C.A.B., Patricia Martinez (2007) 72 Cal. Comp. Cases 1435; 2007 Cal. Wrk. Comp. LEXIS 324.  Court of Appeal affirmed W.C.A.B. decision in applicant’s favor regarding applicability of 1997 rather than 2005 P.D. rating schedule.

 

County of Inyo, PSI v. WCAB (Grace Douthitt) (2007, writ denied) 72 CCC 1507.  We persuaded the Court of Appeal to uphold a WCAB decision in applicant’s favor regarding which permanent disability schedule applied.

Large v. Redlands Ins. Co. (2009) 37 CWCR 227.  WCAB panel decision upholding inclusion of atrophy WPI rating in knee injury case even though the AMA Guides prohibit its inclusion.  The medical evidence clearly explained why it was necessary to include the atrophy in computing the WPI in order to achieve accuracy. Considered an “excellent beginning primer on how to rebut a Guides-based rating” according to the editors of the California Workers’ Compensation Reporter (see 37 CWCR 227.)

San Francisco Unified School District, legally uninsured and administered by Tristar Risk Management, Insurance Company of Hanover, administered by Midlands Claims Administrators v. W.C.A.B., Josephine Richau(2009) 75 Cal. Comp. Cases 76.  Court upheld (writ denied) WCAB decision finding applicant 100% permanently totally disabled due to spine injury and resulting spinal MRSA infection, notwithstanding prior back injuries and awards.  Court found no reasonable basis for the defense Petition for Writ and remanded the matter for an Award of attorney fees under Labor Code section 5801.

Elliott v. W.C.A.B. (2010) 75 Cal. Comp. Cases 81.  Published opinion by the Court of Appeal reversing the WCAB and holding that the employer, not the employee, has the duty to implement UR and to timely request the spinal surgery second opinion evaluation from the AD if it contests spines surgery.  Specifically overrules contrary WCAB  decision in Brasher.

 

Quinn v. Macy’s West (2010) 38 CWCR 42.  WCAB panel decision.  WCAB upheld WCJ’s order excluding from the record the report or testimony of Dr. Christopher Brigham regarding the WPI under the AMA Guides, as Dr. Brigham was not the QME, AME nor treating physician in the case and his opinions were inadmissible.  Defendant’s Petition for Reconsideration was not verified, however, the Board said it would rule this way had it been verified.

 

 

 Ogilvie v. W.C.A.B. (2011) 76 Cal. Comp. Cases 624,  ___ Cal. App. 4th ___.  Court of Appeal reversed WCAB,  holding only AD can promulgate rating schedule, PDRS is rebuttable, and where scheduled rating does not accurately reflect the injured workers’ diminished future earning capacity caused by the injury the schedule is rebutted.  Also discusses other rebuttal methodology.

Cordova  v. S.C.I.F. (2011) 39 CWCR 291.  Board panel upheld WCJ’s finding of permanent total disability based on labor market testimony despite ecprt medical opinion that PD was partial.  Applicant’s inability to speak English and limited education did not contribute to his total loss of pre-injury earning capcity, which was solely due to the injury.

Scott’s Jack London Seafood, Inc. et. Al v. W.C.A.B., Shelley Fitzsimmons (2011) 76 Cal. Comp. Cases 1348; 2011 Cal. Wrk. Comp. LEXIS 189.  Court upheld WCAB award of permanent disability in back injury case based upon analogy to table 6-9 regarding hernias and to table 13-15 regarding gait pursuant to the appellate opinion in the Guzman case.