ADJ10687754 · July 1, 2024

The issue of earnings and disability benefits is deferred to the trial level for further proceedings to avoid piecemeal litigation, as the WCJ has not yet determined entitlement to temporary or permanent disability benefits.

From the decision · page 9In his Report, the WCJ concedes that at the time of injury, applicant had another job working as an employee for Tracy Dog Grooming where he was working 40 hours a week. Since applicant was working for two employers at the time of injury, we agree with the WCJ's Report that the issue of earnings must be determined in accordance with Labor Code section 4453(c)(2).

The WCJ's finding that applicant was employed by You Lucky Dog when injured is affirmed based on credibility and evidence that applicant was controlled and integrated into the employer's business, including the replacement of the bathtub as part of his duties.

From the decision · page 1In the Findings and Orders of July 19, 2021, the Workers' Compensation Administrative Law Judge ("WCJ") found that on November 10, 2016, applicant was employed by "You Lucky Dog" as a dog groomer, and that on said date applicant sustained industrial injury to his right hand and to the third and fourth digits of his right hand.1 The WCJ also found that applicant's earnings were minimum for purposes of temporary and permanent disability indemnity, but the WCJ deferred the issues of applicant's entitlement to temporary disability benefits and medical treatment.

Applicant worked two jobs at time of injury, including another dog grooming job

Favours neutral

This fact requires aggregation of earnings from both jobs for disability calculations, leading to deferral for further proceedings

From the decision · page 9In his Report, the WCJ concedes that at the time of injury, applicant had another job working as an employee for Tracy Dog Grooming where he was working 40 hours a week. Since applicant was working for two employers at the time of injury, we agree with the WCJ's Report that the issue of earnings must be determined in accordance with Labor Code section 4453(c)(2).

Applicant was employed as a dog groomer by You Lucky Dog at time of injury

Favours Applicant prevailed

This fact supports the finding of compensability and employment status in favor of applicant

Applicant was injured while replacing a bathtub as part of his job duties

Favours Applicant prevailed

Supports finding that injury arose out of and in the course of employment, rejecting defendants' independent contractor claim

From the decision · page 8We note that defendants further allege applicant's injury did not arise out of and occur in the course of employment. (Lab. Code, § 3600.) We reject the allegation because defendants fail to support it with any citation to relevant case law. We further note that when applicant was injured while attempting to install a new washtub for dogs, he already had been doing dog grooming for defendants for over a year. Applicant's attempted replacement of the washtub was incidental to his job as a dog groomer, not something that can be carved out of the employment relationship pursuant to a separate, make-believe contract. This conclusion is supported by Reinert v. Industrial Acc. Com. (1956) 46 Cal.2d 349 [21 Cal.Comp.Cases 78], wherein our Supreme Court repeated the well-settled rule that an injury is compensable if the employee is engaged in doing something the employee might reasonably have been expected to do while in the performance of his or her job duties. In Reinert, the injury of a girl scout counselor thrown from horse while riding in her free time was found to be compensable; the medium of exchange in which wages happened to be paid was a mere accidental circumstance that did not permit "clouding" of the course-of- employment issue. (Reinert, 46 Cal.2d at 355, internal quotations and citations omitted.)

Reported injury to right hand fingers, contrary to applicant's testimony of left hand injury.

The WCJ found the injury was to the right hand based on Dr. Lin's report, despite applicant's testimony to the contrary.

From the decision · page 11 Applicant testified at trial that he injured fingers on his left hand, but Dr. Lin reported that applicant injured fingers on his right hand. (See, respectively, Summary of Evidence, 5/6/21, p. 6; report of Dr. Lin dated 5/2/19, applicant's Exhibit 2.) We will not disturb the WCJ's finding that applicant injured his right hand and the third and fourth digits of his right hand. If the body part is incorrect, the WCJ should correct it in further proceedings at the trial level, based on the WCAB's continuing jurisdiction. 2 In his findings, the WCJ identified "You Lucky Dog" as the employer. In his Opinion on Decision, the WCJ indicates that the employer(s) are Rick Dubois and Marvin Varella, individually and doing business as "You Luckie

Labor Code section 3600

Labor Code section 3600 - Injury arising out of and in the course of employment

Defendants' contention that injury did not arise out of employment rejected due to lack of supporting case law; injury during replacement of bathtub incidental to job duties.

From the decision · page 8We note that defendants further allege applicant's injury did not arise out of and occur in the course of employment. (Lab. Code, § 3600.) We reject the allegation because defendants fail to support it with any citation to relevant case law. We further note that when applicant was injured while attempting to install a new washtub for dogs, he already had been doing dog grooming for defendants for over a year. Applicant's attempted replacement of the washtub was incidental to his job as a dog groomer, not something that can be carved out of the employment relationship pursuant to a separate, make-believe contract. This conclusion is supported by Reinert v. Industrial Acc. Com. (1956) 46 Cal.2d 349 [21 Cal.Comp.Cases 78], wherein our Supreme Court repeated the well-settled rule that an injury is compensable if the employee is engaged in doing something the employee might reasonably have been expected to do while in the performance of his or her job duties. In Reinert, the injury of a girl scout counselor thrown from horse while riding in her free time was found to be compensable; the medium of exchange in which wages happened to be paid was a mere accidental circumstance that did not permit "clouding" of the course-of- employment issue. (Reinert, 46 Cal.2d at 355, internal quotations and citations omitted.)

Labor Code section 4453(c)(2)

Labor Code section 4453(c)(2) - Earnings calculation for employees working for multiple employers

Issue of earnings must be determined by aggregating earnings from all employments; WCJ deferred final determination pending disability findings.

From the decision · page 9In his Report, the WCJ concedes that at the time of injury, applicant had another job working as an employee for Tracy Dog Grooming where he was working 40 hours a week. Since applicant was working for two employers at the time of injury, we agree with the WCJ's Report that the issue of earnings must be determined in accordance with Labor Code section 4453(c)(2).

WCJ's credibility determination given great weight due to opportunity to observe witness demeanor