ADJ10531850 · March 17, 2025

The issue of whether applicant is an employee of the homeowners pursuant to Labor Code Section 3352(h) is deferred for further proceedings due to lack of sufficient record and misassigned burden of proof by WCJ.

From the decision · page 12FINDINGS OF FACT 1. the applicant born on ________, while allegedly employed on July 19, 2016 as a drywall installer, occupational group number 380, at 25771 Serenate Drive, Mission Viejo, California, by TIM CAGLE aka TIMOTHY HOWARD CAGLE, individually dba TIM CAGLE DRYWALL, and GREG AND BROOKE BAIRD, homeowners, claims to have sustained injury arising out of and occurring in the course of employment to the neck, arm, hand, knee and various body parts. 2. Applicant was employed by TIM CAGLE, individually dba TIM CAGLE DRYWALL, on the claimed date of injury. It is concluded the unrebutted evidence is that at the time of the claimed injury TIM CAGLE, individually dba TIM CAGLE DRYWALL, was uninsured. 3. The parties were denied an opportunity to cross-examine TIM CAGLE, and Exhibit "G" (letter from Tim Cagle dated June 6, 2016) is struck from evidence. 4. The homeowners, GREGORY and BROOKE BAIRD, are applicant's ultimate hirer for purposes of imposing workers' compensation liability. 5. The issue of whether applicant is excluded from being deemed an employee of the homeowners GREGORY and BROOKE BAIRD pursuant to Labor Code Section 3352(h) is deferred.

Applicant is not entitled to seek workers' compensation benefits directly from UEBTF because UEBTF is not an employer or insurance carrier and cannot stand in the shoes of an employer.

From the decision · page 11Code, § 3716(a)-(b).) However, there is no authority for the proposition that applicant may pursue a claim for workers' compensation benefits directly against UEBTF because UEBTF is not an employer or an insurance carrier standing in the shoes of an employer. (See DuBois, supra; Symmar v. Workers' Comp. Appeals Bd. (1982) 135 Cal.App.3d 65, 70 [47 Cal.Comp.Cases 847, 850§ 851] (stating that a workers' compensation award can only be against the employer).) Thus, the WCJ's finding that applicant is entitled to seek recovery of workers' compensation benefits directly from UEBTF is incorrect. Accordingly, as our Decision After Reconsideration, we will rescind the Findings of Fact and substitute findings that (1) the homeowners, the Bairds, are applicant's ultimate hirer for purposes of imposing workers' compensation liability; and (2) the issue of whether applicant is an employee of the homeowners pursuant to Labor Code section 3352(h) is deferred; and we will return the matter to the trial level further proceedings consistent with this decision.

The homeowners, the Bairds, are found to be the applicant's ultimate hirer for workers' compensation liability because the employer Cagle was unlicensed and uninsured, making the homeowners liable under Labor Code Section 2750.5.

From the decision · page 12FINDINGS OF FACT 1. the applicant born on ________, while allegedly employed on July 19, 2016 as a drywall installer, occupational group number 380, at 25771 Serenate Drive, Mission Viejo, California, by TIM CAGLE aka TIMOTHY HOWARD CAGLE, individually dba TIM CAGLE DRYWALL, and GREG AND BROOKE BAIRD, homeowners, claims to have sustained injury arising out of and occurring in the course of employment to the neck, arm, hand, knee and various body parts. 2. Applicant was employed by TIM CAGLE, individually dba TIM CAGLE DRYWALL, on the claimed date of injury. It is concluded the unrebutted evidence is that at the time of the claimed injury TIM CAGLE, individually dba TIM CAGLE DRYWALL, was uninsured. 3. The parties were denied an opportunity to cross-examine TIM CAGLE, and Exhibit "G" (letter from Tim Cagle dated June 6, 2016) is struck from evidence. 4. The homeowners, GREGORY and BROOKE BAIRD, are applicant's ultimate hirer for purposes of imposing workers' compensation liability. 5. The issue of whether applicant is excluded from being deemed an employee of the homeowners GREGORY and BROOKE BAIRD pursuant to Labor Code Section 3352(h) is deferred.

Tim Cagle was uninsured and unlicensed at the time of injury

Favours Applicant prevailed

This made the homeowners the ultimate hirer liable for workers' compensation

From the decision · page 1Defendant Uninsured Employers Benefits Trust Fund (UEBTF) seeks reconsideration of the Findings of Fact issued on April 12, 2022, wherein the workers' compensation administrative law judge (WCJ) found that (1) while allegedly employed on July 19, 2016, by Tim Cagle, individually, dba Tim Cagle Drywall (Cagle), and Greg and Brooke Baird (the Bairds), homeowners, applicant claims to have sustained injury to the neck, arm, hand, knee and "multiple"; (2) at the time of alleged injury, Cagle was uninsured; (3) Cagle failed to appear at his deposition scheduled for June 16, 2018, to comply with discovery, and to appear for trial, and, therefore, exhibit "G" (letter from Tim Cagle dated June 6, 2016), is not relied upon and not considered evidence here

Applicant's testimony on hours and wages was uncorroborated by documentary evidence

Favours Defendant prevailed

Led to deferral of employee status issue for further record development

From the decision · page 4None of the exhibits entered into evidence were records of the applicant's work on the premises. There were no time cards submitted. There were no check stubs or payroll records submitted. The applicant did not submit any tax records or documents to substantiate any claimed earnings from Tim Cagle in any capacity. Applicant did not submit any records of the number of hours he claims to have worked at the property. Applicant did not testify as to any records he kept on the

UEBTF is not an employer or insurance carrier and cannot be sued directly for benefits

Favours Defendant prevailed

Resulted in denial of applicant's entitlement to seek benefits directly from UEBTF

From the decision · page 11Code, § 3716(a)-(b).) However, there is no authority for the proposition that applicant may pursue a claim for workers' compensation benefits directly against UEBTF because UEBTF is not an employer or an insurance carrier standing in the shoes of an employer. (See DuBois, supra; Symmar v. Workers' Comp. Appeals Bd. (1982) 135 Cal.App.3d 65, 70 [47 Cal.Comp.Cases 847, 850§ 851] (stating that a workers' compensation award can only be against the employer).) Thus, the WCJ's finding that applicant is entitled to seek recovery of workers' compensation benefits directly from UEBTF is incorrect. Accordingly, as our Decision After Reconsideration, we will rescind the Findings of Fact and substitute findings that (1) the homeowners, the Bairds, are applicant's ultimate hirer for purposes of imposing workers' compensation liability; and (2) the issue of whether applicant is an employee of the homeowners pursuant to Labor Code section 3352(h) is deferred; and we will return the matter to the trial level further proceedings consistent with this decision.

Labor Code Section 2750.5

Labor Code Section 2750.5

Determines ultimate hirer liability when employer is unlicensed

From the decision · page 5Labor Code section 2750.5 provides, in relevant part, as follows:

Labor Code Section 3352(h)

Labor Code Section 3352(h)

Defines employee exclusion criteria for homeowners

Labor Code Section 3716

Labor Code Section 3716

Governs payment of benefits from UEBTF when employer fails to pay

From the decision · page 9Labor Code section 3716 provides, as relevant: (a) If the employer fails to pay the compensation required by Section 3715 to the person entitled thereto, or fails to furnish the bond required by Section 3715 within a period of 10 days after notification of the award, the award, upon application by the person entitled thereto, shall be paid by the director from the Uninsured Employers Benefits Trust Fund. The expenses of the director in administering these provisions, directly or by contract pursuant to Section 3716.1, shall be paid from the Workers' Compensation Administration Revolving Fund. Refunds may be paid

Applicant's unrebutted testimony of employment by Cagle on injury date

From the decision · page 1in; (4) applicant testified at trial that on July 19, 2016, he was employed by Cagle, and that testimony is unrebutted; (5) on February 9, 2021, the court ordered this case resubmitted for decision on the issues set forth in the Minutes of Hearing dated September 15, 2020, and the only resulting change to the record was UEBTF's submission of a post-trial brief; (6) applicant does not meet the criteria to be considered a "residence employee" of the homeowner pursuant to exhibit "A"; (7) applicant does not meet the criteria to be considered an employee of the homeowners pursuant to Labor Code Section 3352(h); (8) the record is insufficient to establish that the homeowners were the ultimate hirer of applicant; (9) applicant was employed by Cagle on

Lack of documentary evidence supporting applicant's hours and wages

From the decision · page 4None of the exhibits entered into evidence were records of the applicant's work on the premises. There were no time cards submitted. There were no check stubs or payroll records submitted. The applicant did not submit any tax records or documents to substantiate any claimed earnings from Tim Cagle in any capacity. Applicant did not submit any records of the number of hours he claims to have worked at the property. Applicant did not testify as to any records he kept on the