ADJ8481630 · July 14, 2023

The WCJ's credibility determinations were given great weight, and the evidence supported that applicant was an employee of defendant CGL, Inc. at the time of injury, not an independent contractor.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's Report, which we adopt and incorporate, we will deny reconsideration.

Applicant was performing services for CGL at the time of injury.

Favours Applicant prevailed

This fact supports the presumption of employment under Labor Code section 3357.

From the decision · page 15The challenged decision noted that the Labor Code provides a presumption of employment whenever "[a]ny person [is] rendering service for another." Obviously, applicant was providing services for CGL at the time of his injury. It also appears that applicant was performing services for Fierro and/or the owner of the facility, but the main beneficiary of applicant's services was CGL. Although Garavitt testified to his believe that applicant was really employed by those other individuals, there was no evidence provided regarding applicant being paid by either of them, or the terms of the alleged contracts between CGL and these other persons.

Applicant's credible testimony that he relied more on CGL than Fierro for payment, including in-kind payment.

Favours Applicant prevailed

Supports the finding that applicant was employed by CGL rather than an independent contractor for Fierro.

From the decision · page 15If the facts revealed by the credible testimony were different, it would make sense that applicant was employed by Fierro, who in turn was hired by CGL (or the property owner) to perform such work. However, applicant testified credibly that he did not receive consistent payment for services by either Fierro or CGL and that he relied more upon CGL than Fierro for payment (including in-kind payment with products). Thus, applicant was employed by CGL.

Defendant did not meet burden to show applicant was an independent contractor.

Favours Applicant prevailed

Failure to rebut presumption of employment supports applicant's status as employee.

From the decision · page 2independent contractor or otherwise excluded from protection under the [Workers'] Compensation Act." (Johnson v. Workmen's Comp. Appeals Bd. (1974) 41 Cal.App.3d 318, 321 [39 Cal.Comp.Cases 565]; Lab. Code, § 3202.5, 5705(a).) An independent contractor is defined for the purposes of workers' compensation as "any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished." (Lab. Code, § 3353.) The question of whether a worker is an employee, or an independent contractor is one of fact. (Estrada v. Fedex Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 10-11.) Here, the WCJ found applicant's testimony to be credible, and considering the evidence in the record, defendant has not met its burden to show that applicant was an independent contractor.

Labor Code section 3357

Presumption of employment under Labor Code section 3357

The presumption applies to any person rendering service for another unless proven otherwise.

From the decision · page 1Under Labor Code section 3357, "[a]ny person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee." (Lab. Code, § 3357, italics added.) "[T]he fact that one is performing work and labor for another is prima facie evidence of employment and such person is presumed to be a servant in the absence of evidence to the contrary." (Narayan v. EGL, Inc. (2010) 616 F.3d 895, 900 [75 Cal.Comp.Cases 724].)

Labor Code section 3353

Definition of independent contractor under Labor Code section 3353

An independent contractor renders service for a specified recompense for a specified result, controlled only as to the result, not the means.

From the decision · page 2independent contractor or otherwise excluded from protection under the [Workers'] Compensation Act." (Johnson v. Workmen's Comp. Appeals Bd. (1974) 41 Cal.App.3d 318, 321 [39 Cal.Comp.Cases 565]; Lab. Code, § 3202.5, 5705(a).) An independent contractor is defined for the purposes of workers' compensation as "any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished." (Lab. Code, § 3353.) The question of whether a worker is an employee, or an independent contractor is one of fact. (Estrada v. Fedex Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 10-11.) Here, the WCJ found applicant's testimony to be credible, and considering the evidence in the record, defendant has not met its burden to show that applicant was an independent contractor.

Borello v. Department of Industrial Relations (1989) 48 Cal. 3d 341

Borello factors for determining employment status

The Borello factors provide detailed guidelines for determining employment status in workers' compensation claims.

Dynamex Operations West v. Superior Court (2018) 4 Cal. 5th 903

Borello standard applies over Dynamex for workers' compensation claims

The Dynamex ABC test does not apply to workers' compensation employment status determinations; Borello standard remains controlling.

From the decision · page 9Notwithstanding these simple statements of the law of employment in workers' compensation, case law has provided a lot more factors to consider. Of greatest relevance is the state Supreme Court's 1989 decision of Borello, with this decision and later ones summarized in great detail in the Court's 2018 decision of Dynamex. [Dynamex Operations W. v. Superior Court (2018) 4 Cal. 5th 903 [83 Cal. Comp. Cases 817]. Although the later decision arguably, significantly changed the law of employment from Borello, it appears that the former decision still controls with regard to workers' compensation claims. "Since the Dynamex Court did not overturn the Borello standard for determining an applicant's employment status with respect to the requirement of providing workers' compensation benefits, and expressly limited the application of the ABC test to the determination of employment status with regard to wage orders, we conclude that the Borello standard applies here." Perkins v. Knox (2018) 84 Cal. Comp. Cases 44, 50 (appeals board panel decision)]

Credibility determinations of the WCJ who observed witness demeanor

From the decision · page 1We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determinations. (Id.)