ADJ10876135 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; Findings and Order of March 29, 2024 rescinded; matter returned to trial level for further proceedings.

Applicant seeks reconsideration of the Findings and Order issued on March 29, 2024, which found applicant was not an employee of defendant and denied the claim; the WCAB granted reconsideration and rescinded the F&O, returning the matter to trial for further proceedings.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Jurisdiction / venueRemanded

The WCJ's finding that applicant was not an employee was based on the exclusion of rebuttal witness testimony due to procedural rules, which was erroneous; the Appeals Board granted reconsideration and remanded for further proceedings to develop the record on employment and defenses.

From the decision · page 1Applicant seeks reconsideration of the Findings and Order (F&O) issued on March 29, 2024, wherein the workers' compensation administrative law judge (WCJ) found that (1) while allegedly employed as a laborer on March 3, 2011, applicant allegedly sustained injury arising out of and occurring in the course of employment to the back and legs; and (2) applicant was not an employee of defendant.

The facts that decided it

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

California Labor Code

Labor Code Section 3352(a)(8)(A)

Used to determine employment status based on hours worked.

From the decision · page 2As per the credible testimony of the defendant homeowner, the petitioner told her that it was a small job that would take only 2-3 days, and the petitioner left after 2 days. Based thereupon, the petitioner worked less than 52 hours. Accordingly, as per Labor Code § 3352(a)(8)(A), the petitioner was not an employee of the defendant homeowner.

California Labor Code

Labor Code Section 5502(d)(3)

Rule on admissibility of evidence not disclosed before settlement conference; relevant to exclusion of rebuttal witness testimony.

From the decision · page 5If the claim is not resolved at the mandatory settlement conference, the parties shall file a pretrial conference statement noting the specific issues in dispute, each party's proposed permanent disability rating, and listing the exhibits, and disclosing witnesses. Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference. (§ 5502(d)(3) [Emphasis added].) In this regard, the parties raised various claims and defenses for adjudication at trial and the WCJ ordered trial solely as to the issue of employment. (Minutes of Hearing, September 26, 2023, p.

California Labor Code

Labor Code Section 5705(a)

Burden of proof on employment status and defenses.

From the decision · page 4Under these authorities, applicant bears the burden of proving that he rendered service for defendant, whereupon the burden shifts to defendant to rebut the employment presumption with proof that applicant is excluded from the definition of employee. (See § 5705(a)2; see, e.g., § 3352; In other words, after applicant demonstrates that he rendered service for defendant, defendant must show by a preponderance of the evidence that he rendered service in an excluded status. (California Compensation Ins. Co. v. Workers' Comp. Appeals Bd. (Hernandez) (1998) 63 Cal.Comp.Cases 844 (writ den.); Lara v. Workers' Comp. Appeals Bd. (2010) 182 Cal.4th 393, 402 [75 Cal.Comp.Cases 91].)

ADJ10876135 · June 24, 2024

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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