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Antonio Hernandez Orozco, vs. Ronald Mcdonald Farms; Zenith Insurance Company,

Ronald Mcdonald Farms; Zenith Insurance Company, Antonio Hernandez Orozco, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAANTONIO HERNANDEZ OROZCO,Applicant,vs.RONALD MCDONALD FARMS; ZENITH INSURANCE COMPANY,Defendants.Case No. ADJ7929330(Fresno District Office)OPINION AND ORDER GRANTING PETITION FOR RECONSIDERATION AND DECISION AFTER RECONSIDERATION            Defendant seeks reconsideration of the “Findings of Fact, Award, Order and Opinion on Decision” (“F&O”) issued on February 24, 2017 by a workers’ compensation administrative law judge (“WCJ”). The WCJ found, in pertinent part, that applicant sustained injury arising out of and in the course of his employment as a tractor driver on July 15, 2011 to his neck, back, left shoulder, right shoulder, resulting in a 39% permanent disability after apportionment; the medical opinions of primary treating physician Mark Hellner, M.D. are well reasoned and relied on; and applicant’s attorney is entitled to a 15% fee. In addition, the WCJ found that Zenith Insurance Company (“Zenith”) assigned its lien in the third-party case to Bristol Trucking and Cartage, and by the language of that assignment “sold future rights including any claim to credit.” (F&O, Finding of Fact No. 6.) The WCJ awarded applicant permanent disability and attorney’s fees pursuant to his findings, and ordered applicants’ exhibits 1 to 4 admitted into evidence; and sustained applicant’s objection to defendant’s exhibits E to H and M.            Defendant contends that applicant’s permanent disability impairment should be 36% and not 39% because the WCJ used a whole person impairment (“WPI”) of 5% for the right shoulder rather than the 3% WPI found by Dr. Hellner; and that it did not expressly waive its right to credit pursuant to Labor Code1 section 3861 against future benefits due to or on behalf of applicant from applicant’s net 1 All further references are to the Labor Code unless otherwise noted. , settlement proceeds of $23,506.14 in the thi


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