ADJ16473370 · January 21, 2025

The preponderance of the evidence shows that Command International Security was the applicant's employer on the date of injury, based on applicant's testimony, corroborating testimony from the project manager, text messages, and lack of evidence of employment or payment by Prestige.

From the decision · page 12Hence the preponderance of the evidence shows that Command was the Applicant's employer on the date of injury.

Applicant continued to perform the same services for Command International Security up to and including the date of injury, was paid by Command's agent, and took instructions from him.

Favours Applicant prevailed

Showed ongoing employment relationship with Command on the date of injury.

From the decision · page 11The preponderance of evidence shows that (1) Aktar was employed and therefore acting as agent for Command on the DOI, (2) Applicant was informed that his employer was Command, (3) Command admits it continued to employ Aktar as of the date of injury, (4) documents confirm that Command was paying salary to the Applicant, (5) Applicant continued to receive pay in the regular manner up to the date of injury, (6) there was no payments made to Applicant by Prestige, (7) Aktar was terminated by Prestige before the date of injury.

No evidence of payment or employment relationship between applicant and Prestige International Security.

Favours Applicant prevailed

Undermined defense's claim that Prestige was the employer.

From the decision · page 9There was no evidence of payments made by Prestige to the Applicant (Minutes of Hearing, 5/17/2023, p. 6).

Favours Applicant prevailed

Supported finding that Command was the employer through its agent.

From the decision · page 11The preponderance of evidence shows that (1) Aktar was employed and therefore acting as agent for Command on the DOI, (2) Applicant was informed that his employer was Command, (3) Command admits it continued to employ Aktar as of the date of injury, (4) documents confirm that Command was paying salary to the Applicant, (5) Applicant continued to receive pay in the regular manner up to the date of injury, (6) there was no payments made to Applicant by Prestige, (7) Aktar was terminated by Prestige before the date of injury.

Lab. Code § 3351

Labor Code section 3351 defines 'employee' as every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.

Applied to determine applicant's employment status at the time of injury.

From the decision · page 3II. We observe that California has a no-fault workers' compensation system. With few exceptions, all California employers are liable for the compensation provided by the system to employees injured or disabled in the course of and arising out of their employment, "irrespective of the fault of either party." (Cal. Const., art. XIV, § 4.) The protective goal of California's no- fault workers' compensation legislation is manifested "by defining `employment' broadly in terms of `service to an employer' and by including a general presumption that any person `in service to another' is a covered `employee.'" (Lab. Code, § 3351, 3357.) We also note that employment relationships that result in workers' compensation liability are based upon an analysis of the definition of an employee, rather than upon the definition of the employer. (See Heiman v. Workers' Comp. Appeals Bd. (Aguilera) (2007) 149 Cal.App.4th 724 (Heiman).) Labor Code section 3351 defines "employee" as "every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed...." (Lab. Code, § 3351.) Under Labor Code

Lab. Code § 2750.5

There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required is an employee rather than an independent contractor.

Applied to reject defendant's argument that applicant was an independent contractor.

From the decision · page 4There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required..., or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor....

Johnson v. Berkofsky-Barret Prods. (1989) 211 Cal.App.3d 1067, 1072

The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced.

Applied to disregard the employer's characterization of the relationship.

From the decision · page 4relationship and note that "[t]he label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced. [Citations.]" (Johnson v. Berkofsky-Barret Prods. (1989) 211 Cal.App.3d 1067, 1072.)

Laeng v. WCAB (1972) 6 Cal.3d 771; Pomona College v. WCAB (Robusto) (2009) 74 CCC 1284

A contract of employment is broadly interpreted to include any activity within the 'orbit of the risks of employment.'

Applied to find that applicant's continued service constituted employment despite alleged termination.

From the decision · page 11The Supreme Court in Laeng v. WCAB (1972) 6 Cal.3d 771; 37 CCC 185 made it clear that a contract of employment is broadly interpreted to include any activity within the "orbit of the risks of employment." Hence the fact that Defendant claims the employment relationship with the applicant

From the decision · page 11The preponderance of evidence shows that (1) Aktar was employed and therefore acting as agent for Command on the DOI, (2) Applicant was informed that his employer was Command, (3) Command admits it continued to employ Aktar as of the date of injury, (4) documents confirm that Command was paying salary to the Applicant, (5) Applicant continued to receive pay in the regular manner up to the date of injury, (6) there was no payments made to Applicant by Prestige, (7) Aktar was terminated by Prestige before the date of injury.

Testimony of Juan Guerrero, project manager, corroborating applicant's work as a security guard at the site and text messages confirming daily work.

Over 100 pages of text messages between applicant and project manager confirming daily work at the site up to and including the date of injury.

From the decision · page 5vast majority of the messages say simply "Arrived at Broadway" or "Leaving from Broadway." (Exhibit 2, Multiple text messages to general contractor.) Relevant here, applicant texted that he was arriving/leaving every day from January 1, 2022, through February 11, 2022.

No evidence of payment to applicant by Prestige International Security; payroll records and testimony confirm no employment relationship with Prestige.

From the decision · page 9There was no evidence of payments made by Prestige to the Applicant (Minutes of Hearing, 5/17/2023, p. 6).