What the panel treated as outcome-determinative, and which side it favoured.
Applicant worked fewer than 52 hours at the residential dwelling owned or occupied by the homeowners.
Favours Defendant prevailed
This fact excludes the homeowners from being employers under Labor Code section 3352, shielding them from liability.
From the decision · page 2The WCJ found that the homeowners were "shielded from liability" because applicant was
employed on the job site for fewer than 52 hours and thus were excluded as employees per Labor
Code section 3352. (Opinion on Decision, October 15, 2021, pp. 2-3.)
David Culbertson did not own or occupy the dwelling where the injury occurred.
Favours Applicant prevailed
This fact means Labor Code sections 3352 and 3715 do not apply to his employment of applicant, so he is not shielded from liability and is affirmed as the employer.
From the decision · page 4maintenance, or use of the dwelling, including the care and
supervision of children, or whose duties are personal and not in the
course of the trade, business, profession, or occupation of the owner
or occupant.
(§ 3351(d), (emphasis added).)
Defendant's entire argument on reconsideration is that it is also excluded from employment
in this case; however, defendant's argument fails to recognize that the exception it invokes only
applies to the owner or occupant of the dwelling. (See Heiman v. Workers' Comp. Appeals Bd.
(2007) 149 Cal. App. 4th 724, 72 Cal. Comp. Cases 314, [Limiting application of section 3352 to
the owners of the residence and not extending such protection to a homeowners' association.].)
Defendant did not own or occupy the dwelling as its residence. Accordingly, defendant is not a
"residential employer" and it is not shielded from liability under section 3715 or otherwise
excluded from employment under sections 3351 or 3352.
In reaching our conclusion, we have given the WCJ's credibility determinations great
weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v.
Workmen's Comp. Appeals Bd.
Employer failed to provide applicant with a claim form or statutory notices of the right to seek workers' compensation.
Favours Applicant prevailed
This failure equitably tolled the statute of limitations, allowing applicant's claim to proceed.
From the decision · page 5injury, while employed on June 18, 2002 as a painter and
construction laborer, at Newbury Park, by David Culbertson,
claims to have sustained injury arising out of and in the
course of employment to his neck, left shoulder, left elbow,
left wrist, and low back.
2. Pursuant to Labor Code section 3352, applicant was not an
employee of Gabriela Vickrey and Randy Vickrey as they
owned or occupied the residential dwelling and applicant
worked at the residential dwelling for less than 52 hours.
3. David Culbertson did not own or occupy the dwelling where
applicant's injury occurred so that Labor Code section 3352
and 3715 do not apply to his employment of applicant.
4. Applicant's claim is not barred by the statute of limitations
as the employer failed to provide applicant with a claim form
or other statutory notices of his right to seek workers'
compensation and thus, the statute of limitations was
equitably tolled.
5. Defendant did not meet his burden of proof to show
prejudice under the doctrine of laches. Furthermore,
defendant, an uninsured employer, has unclean hands.
Defendant did not meet burden to show prejudice under laches and had unclean hands as an uninsured employer.
Favours Applicant prevailed
This fact supports denying defendant's laches defense and favors applicant's claim.
From the decision · page 5injury, while employed on June 18, 2002 as a painter and
construction laborer, at Newbury Park, by David Culbertson,
claims to have sustained injury arising out of and in the
course of employment to his neck, left shoulder, left elbow,
left wrist, and low back.
2. Pursuant to Labor Code section 3352, applicant was not an
employee of Gabriela Vickrey and Randy Vickrey as they
owned or occupied the residential dwelling and applicant
worked at the residential dwelling for less than 52 hours.
3. David Culbertson did not own or occupy the dwelling where
applicant's injury occurred so that Labor Code section 3352
and 3715 do not apply to his employment of applicant.
4. Applicant's claim is not barred by the statute of limitations
as the employer failed to provide applicant with a claim form
or other statutory notices of his right to seek workers'
compensation and thus, the statute of limitations was
equitably tolled.
5. Defendant did not meet his burden of proof to show
prejudice under the doctrine of laches. Furthermore,
defendant, an uninsured employer, has unclean hands.