Jose Chirinos vs. Heartwood Cabinet; Majestic Insurance Company

(SJO 0269417)This case involves Jose Chirinos, an employee of Heartwood Cabinets, who sustained a specific injury on August 2, 2006, and a cumulative trauma injury from January 22, 2007 to January 22, 2008. Virginia Surety provided benefits for the specific injury, and both Virginia Surety and Majestic Insurance Company provided coverage during the period of liability for the cumulative trauma. Virginia Surety settled the cumulative trauma claim with Chirinos and then sought contribution from Majestic for the benefits paid. Majestic sought to exercise its right to discovery and, pursuant to Labor Code sections 4062, selected Dr. Scott as its Panel Qualified Medical Examiner. The arbitrator relied upon Dr. Scott's assessment of the

Heartwood Cabinet; Majestic Insurance Company Jose Chirinos WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAJOSE CHIRINOS, Applicant,vs.HEARTWOOD CABINET; MAJESTIC INURANCE COMPANY, Defendants.Case No. ADJ2087163 (SJO 0269417) OPINION AND DECISION AFTER RECONSIDERATION            On February 15, 2011, we granted reconsideration in this matter to provide an opportunity to obtain a report from the workers’ compensation arbitrator and to further study the legal and factual issues raised by the petition for reconsideration. Having completed our review, we now issue our Decision After Reconsideration.            Defendant, Virginia Surety, filed a Petition for Reconsideration from the Findings and Order issued December 6, 2010, in which a workers’ compensation arbitrator allowed Virginia Surety’s claim for contribution against Majestic Insurance Company (Majestic), for benefits Virginia Surety paid to applicant, Jose Chirinos, for his cumulative trauma injury for the period January 22, 2007 through January 22, 2008, where Majestic had 97% of the coverage during the period of cumulative trauma injury. The arbitrator found Virginia Surety’s expenses for medical treatment and disability benefits totaled $50,878.28, but that only 30% of the expenses were attributable to the claim for cumulative trauma, with the remainder attributable to the August 2, 2006 specific injury, leaving the parties to adjust Virginia Surety’s claim for contribution accordingly.            Virginia Surety contends the arbitrator erred in relying upon the opinion of Dr. Wylie Scott to find only 30% of applicant’s benefits were attributable to the cumulative trauma claim for which Majestic was liable in contribution, with the remainder arising from a specific injury which applicant dismissed in settling his cumulative trauma claim. Virginia Surety argues that because Dr. Scott did not perform a physical examination of applicant, his reports should be found inadmissible, and the opinion of , D

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