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Petition for Reconsideration granted; Findings and Order of March 29, 2024 rescinded; matter returned to trial level for further proceedings.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2024, which found applicant was not an employee of defendant and denied the claim; the WCAB granted reconsideration and rescinded the F&O, returning the matter to trial for further proceedings.
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.
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
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was barred from presenting rebuttal witness testimony due to procedural exclusion under Labor Code Section 5502(d)(3).
Favours Defendant prevailed
This exclusion led to the WCJ's finding that applicant was not an employee, which was erroneous.
Defendant testified applicant worked less than 52 hours, invoking Labor Code Section 3352(a)(8)(A) defense.
Favours Defendant prevailed
This testimony was credited by the WCJ to find applicant was not an employee.
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.
The Appeals Board found the exclusion of rebuttal testimony was error and remanded for further proceedings to develop the record on employment and defenses.
Favours Applicant prevailed
This led to rescinding the F&O and remanding the case for further trial.
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].)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony about employment duration and co-worker presence was found not credible by WCJ; defendant's testimony was found credible.
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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