ADJ17176604 — California WCAB decision

ADJ17176604 · October 24, 2024

The Appeals Board granted the petition for reconsideration, rescinded the WCJ's July 15, 2024 Findings and Order, deferred the issue of whether Labor Code section 3352(a)(8)(A) applies, and returned the matter to the trial level for further proceedings.

Issues decided

Medical opinions weighed

Authorities named

District office

Los Angeles

What the panel ordered

Applicant sought reconsideration of the WCJ's Findings of Fact and Order issued on July 15, 2024, which excluded applicant as an employee under Labor Code section 3352. The WCJ filed a Report and Recommendation on Petition for Reconsideration recommending denial unless section 3352 includes all contracted time. The Appeals Board granted reconsideration and rescinded the WCJ's order, deferring the issue for further proceedings.

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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.

AOE/COEDeferredleft leg · left hip

The Board found applicant was presumed an employee under the ABC test and that defendant met the residential employer requirement under section 3352(a)(8). However, the record was insufficient to determine if the contracted employment was less than 52 hours, so the issue was deferred for further development.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant was presumed to be an employee under the ABC test because neither applicant nor homeowners held a required roofing contractor license.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 2750.5

ABC test for employment under Labor Code sections 2750.5 and 2775 et seq.

Presumption that a worker performing services requiring a license is an employee rather than an independent contractor.

From the decision · page 5With respect to the issue of whether applicant was an independent contractor, since applicant's injury occurred after July 1, 2020, the ABC test of employment within sections 2750.5 and 2775 et. seq. applies. However, upon the facts presented in this case and pursuant to section 2750.5: "There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, 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."

Labor Code sections 3352, 3357, 5705(a)

Burden of proof on defendant to prove exclusion under section 3352 as an affirmative defense.

Defendant must prove exclusion of employment; failure results in applicant being an employee.

From the decision · page 5The next question is whether defendant met its burden of proving an exclusion under section 3352. To be clear, it is defendant's burden to prove exclusion of employment pursuant to section 3357, and it is an affirmative defense. (§ 5705(a).) If defendant fails its burden that applicant is excluded under section 3352, then applicant is an employee.

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 (Appeals Board en banc)

Requirement that Appeals Board decisions be based on admitted evidence and duty to develop the record where evidence is insufficient.

Board must further develop record when evidence is insufficient to ensure substantial justice.

From the decision · page 6Decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) The WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on an issue. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].) The Appeals Board has a constitutional mandate to "ensure substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) The Board may not leave matters undeveloped where it is clear that additional discovery is needed. (Id. at p. 404.)

ADJ17176604 · October 24, 2024

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

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