ADJ16929084 · December 22, 2025

The WCJ found applicant was not an employee under section 3351(f) because he did not receive wages irrespective of profits, but the Appeals Board found that as a general partner who did not waive coverage, he is covered by the division. The matter involves insurance coverage and must be submitted to arbitration before further proceedings.

From the decision · page 6Here, the WCJ found that applicant was not an employee because he was not receiving wages irrespective of profits.2 The parties fail to acknowledge that the section goes on to specifically address general partners, without limiting language, that have not elected to be excluded from coverage.3 Whether applicant was a working member of a partnership or a general partner, he would be automatically covered by the division regardless. Section 3352 (a)(17)(A) specifically provides that general partners may be excluded from the definition of employee, and thereby excluded from coverage, only when they execute "a written waiver of his or her rights under this chapter stating under penalty of perjury that the person is a qualifying general partner." (Lab. Code, § 3352(a)(17))4 Neither party appears to dispute that applicant is a general partner that remained a practicing attorney, thereby meeting the definition of employee either under the general definition or the explicit inclusion of subsection f of Section 3351. Thus, this issue is not an employment issue, but a coverage issue.

The WCJ found no industrial injury because the strokes were caused by a business event, not employment duties. The Appeals Board did not make a final determination on injury causation but noted the need for further development of the record.

From the decision · page 3The WCJ found that applicant was not an employee but was still covered by Hartford as an attorney, but that applicant did not sustain an industrial injury. In her opinion, she explained that applicant was not employee under section 3351(f) because he only took a draw from profits and did not receive wages. However, she opined that Hartford's policy did cover him for any attorney work as outlined in the policy. With respect to her finding that applicant did not sustain a cumulative injury, she described the basis for her decision in the Opinion. She stated that the medical evidence from Dr. Fineman showed that:

Applicant is a general partner who did not execute a waiver of coverage under Labor Code section 3352(a)(17)

Favours Applicant prevailed

This means applicant is covered by the workers' compensation division as an employee under section 3351(f).

From the decision · page 6Here, the WCJ found that applicant was not an employee because he was not receiving wages irrespective of profits.2 The parties fail to acknowledge that the section goes on to specifically address general partners, without limiting language, that have not elected to be excluded from coverage.3 Whether applicant was a working member of a partnership or a general partner, he would be automatically covered by the division regardless. Section 3352 (a)(17)(A) specifically provides that general partners may be excluded from the definition of employee, and thereby excluded from coverage, only when they execute "a written waiver of his or her rights under this chapter stating under penalty of perjury that the person is a qualifying general partner." (Lab. Code, § 3352(a)(17))4 Neither party appears to dispute that applicant is a general partner that remained a practicing attorney, thereby meeting the definition of employee either under the general definition or the explicit inclusion of subsection f of Section 3351. Thus, this issue is not an employment issue, but a coverage issue.

The medical evidence showed the strokes were caused by a business event, not employment duties

Favours Defendant prevailed

The WCJ found no industrial injury because the injury was not caused by employment activities, affecting compensability.

From the decision · page 3The WCJ found that applicant was not an employee but was still covered by Hartford as an attorney, but that applicant did not sustain an industrial injury. In her opinion, she explained that applicant was not employee under section 3351(f) because he only took a draw from profits and did not receive wages. However, she opined that Hartford's policy did cover him for any attorney work as outlined in the policy. With respect to her finding that applicant did not sustain a cumulative injury, she described the basis for her decision in the Opinion. She stated that the medical evidence from Dr. Fineman showed that:

Opined that the work-related financial event exacerbated pre-existing hypertension and diabetes causing strokes.

The strokes were caused by a business event, not employment duties, per WCJ's interpretation of Dr. Fineman's opinion.

From the decision · page 3Applicant attended two Qualified Medical Evaluator (QME) evaluations with QMEs in Neurology and Psychiatry. (Joint A&B.) The QME in neurology, Sherie Fineman, M.D., opined that the work related incident in April of 2022 wherein the partners were advised of a past account from 2015 that had turned negative, which resulted in back taxes being owed exacerbated his pre- existing hypertension and diabetes, which caused the strokes. (Joint A, p. 145.) The psychiatric QME Lindslee Egan, M.D., similarly opined that applicant's psychiatric condition was caused by a combination of the aforementioned financial event in April of 2022 as well as perceived excessive workload. (Joint B, p. 22-23.)

Opined psychiatric condition caused by financial event and perceived excessive workload.

The psychiatric condition was linked to business events, not employment duties, per WCJ's interpretation.

From the decision · page 3Applicant attended two Qualified Medical Evaluator (QME) evaluations with QMEs in Neurology and Psychiatry. (Joint A&B.) The QME in neurology, Sherie Fineman, M.D., opined that the work related incident in April of 2022 wherein the partners were advised of a past account from 2015 that had turned negative, which resulted in back taxes being owed exacerbated his pre- existing hypertension and diabetes, which caused the strokes. (Joint A, p. 145.) The psychiatric QME Lindslee Egan, M.D., similarly opined that applicant's psychiatric condition was caused by a combination of the aforementioned financial event in April of 2022 as well as perceived excessive workload. (Joint B, p. 22-23.)

Labor Code section 3351(f)

Definition of employee under Labor Code section 3351(f) including working members of a partnership receiving wages irrespective of profits

Applicant is a general partner who did not waive coverage and thus is covered by the division.

From the decision · page 5Code, § 3357.) Once the person rendering service establishes a prima facie case of "employee" status, the burden shifts to the hirer to affirmatively prove that the worker is an independent contractor or other excluded classification. (Cristler v. Express Messenger Sys., Inc. (Cristler) (2009) 171 Cal.App.4th 72, 84 [74 Cal.Comp.Cases 167]; Narayan v. EGL, Inc. (Narayan) (2010) 616 F.3d 895, 900 [75 Cal.Comp.Cases 724].) Section 3351(f) includes in the definition of employee, "all working members of a partnership or limited liability company receiving wages irrespective of profits from the partnership or limited liability company. A general partner of a partnership or a managing member of a limited liability company may elect to be excluded from coverage in accordance with paragraph (17) of subdivision (a) of Section 3352." (Lab. Code, § 3351(f), emphasis added.)

Labor Code section 5275(a)(1)

Requirement that disputes involving insurance coverage be submitted for arbitration under Labor Code section 5275(a)(1)

The matter should have been submitted for arbitration prior to issuing an award on coverage and compensability.

From the decision · page 6Section 5275(a) (1) requires that disputes involving issues of insurance coverage shall be submitted for arbitration. (Lab. Code, § 5275.) This matter should have been submitted for arbitration prior to issuing an award on the other substantive issues regarding compensability of the claim. As such, we will rescind the findings of fact and return the matter to the WCJ to order the matter submitted to arbitration.

South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291

Burden of proving injury arising out of and in the course of employment by preponderance of evidence

Employee must prove injury was proximately caused by employment to be compensable.

From the decision · page 6However, the employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297 298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a) & 3202.5.) An injury must be proximately caused by the employment in order to be compensable. (Lab. Code, § 3600(a)(3); see also Clark, supra, 61 Cal.4th at pp. 297-298.) Proximate cause in workers' compensation

Applicant's testimony about his compensation structure and financial stress

From the decision · page 2Neither document encompasses the full policy, Defense Exhibit A is only an endorsement modifying the standard policy, and both documents appear to lump together different policy years. At trial applicant testified that he and two other partners were the founding partners of the law firm and that he is currently a senior partner. (MOH/SOE, 4:6-11.) Applicant testified that in addition to handling a full caseload, he also marketed for the firm and handled personnel and hiring. (MOH/SOE, 4:10-14.) He testified that in February or March of 2022, an unexpected financial debt in the firm caused him to experience significant financial stress. (MOH/SOE, 6:15- 19.) Applicant explained was paid as a draw against profits and that the monthly draw was considered a salary. (MOH/SOE, 7:2-5.) He also received a car allowance and his bar dues were paid. (MOH/SOE, 7:5-7.) He testified that he also had the option to be reimbursed for health insurance. (MOH/SOE, 7:7-10.) In roughly May of 2022, applicant suffered his first stroke. He returned to work, but suffered a second stroke on or about June 17, 2022. (MOH/SOE, p. 8:17-9:3.) He has not worked

Lack of partnership agreement and unclear compensation structure

From the decision · page 3Defendant called a witness, another named partner of the firm, to testify. This witness testified that he, the applicant, and one other person were the principal partners. (MOH/SOE, 10:11-13.) He testified that they would forecast revenues and expenses and then attempt to have monthly draws that were paid biweekly commensurate with expected revenue share in the course of the year. (MOH/SOE, 10:15-20.) He indicated that their draws were not necessarily reflective of actual profit and loss of the firm because they are cash based. (MOH/SOE, 10:21-22.) Other partners with lesser shares were guaranteed an income. (MOH/SOE, 10:25-11:2.) Neither party offered applicant's partnership agreement or testified that there was a written agreement.