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California WCABOrder denying reconsideration

ADJ9810139 · June 21, 2021

Petition for Reconsideration denied

Issues decided: 2
Medical opinions weighed: 1
Authorities named: 3
District office: Los Angeles

What the panel ordered

Petition for Reconsideration deniedp. 3

Petition for Reconsideration from WCJ’s Findings and Order dated April 7, 2021

Read the official decision →

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/COEApplicant prevailed

Applicant rendered services to Elias Roofing at the Orizaba house; defendant failed to overcome the presumption of employment under Lab. Code, § 3357

From the decision · page 2(1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Based on this unrebutted testimony, applicant made a sufficient showing that he rendered services to Elias Roofing for roofing work at the Orizaba house. It was defendant’s burden of proof to overcome the presumption of employment and here, defendant did not do so.

Substantial evidence / credibilityApplicant prevailed

WCJ’s credibility determinations given great weight; unrebutted testimony established employment relationship

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Factor-based workers' compensation case-law research. Reference information and research assistance, not legal advice.

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ADJ9810139 — California WCAB decision · SimilarCase

From the decision · page 2The WCJ believed applicant’s testimony that he was at the Orizaba house doing roofing work under the direction and control of Elias Roofing. We 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.

The facts that decided it

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

Applicant was hired by Elias Roofing to perform roofing/labor work at Orizaba project and was not working as an independent contractor

Favours Applicant prevailed

Established employment relationship with uninsured subcontractor, making general contractor AD&D liable

From the decision · page 4Here, AD&D Construction, a general contractor, hired Elias Roofing, a roofing subcontractor, for the Orizaba project. Elias Roofing hired Applicant to perform roofing/labor type work at the project. Applicant was not working as an independent contractor. Eli as Roofing, the applicant's actual hirer, was uninsured at the time.

Elias Roofing was unlicensed and uninsured at time of work

Favours Applicant prevailed

Liability shifted to insured general contractor AD&D under Labor Code provisions for uninsured subcontractors

From the decision · page 5The fact Elias Roofing was unlicensed and uninsured was an unfortunate, and possibly an unintended consequence, for AD&D Construction.

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

otherNot reached

First medical report dated 5/28/14 referencing 4/2/14 injury; applicant placed on TTD for 4 weeks

Not reached because trial limited to employment issue

From the decision · page 8Applicant submitted a few medical reports, starting on 5/28/14 with Dr. Hitendra Shah, which appears to be about 2 to 3 months after the alleged injury. It indicates that 4/2/14 was the date of injury.

The rules the panel named

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

Lab. Code, § 3357

Presumption of employee status under Lab. Code, § 3357 when person renders service for another

Applicant rendered roofing services to Elias Roofing; defendant failed to overcome presumption

From the decision · page 2Code, § 3351.) Section 3357 further provides that “[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.

Lab. Code, § 5705(a)

Employer bears burden under Lab. Code, § 5705(a) to prove injured person was independent contractor

Defendant did not present evidence rebutting applicant’s testimony

From the decision · page 2Code, § 3357.) Finally, section 5705 explicitly states that the employer has the burden of proving that “an injured person claiming to be an employee was an independent contractor or otherwise excluded from the protection of this division where there is proof that the injured person was at the time of his or her injury actually performing service

Garza v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 312

WCJ credibility determinations given great weight when WCJ observed witness demeanor

WCJ believed applicant’s testimony that he worked under direction of Elias Roofing

From the decision · page 2The WCJ believed applicant’s testimony that he was at the Orizaba house doing roofing work under the direction and control of Elias Roofing. We 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.

What proof carried it

The evidence the panel weighed, by kind.

Evidence weighed

Applicant testified he worked three days on Orizaba Street roofing job, hired by Elias, paid by Elias, and Alfredo paid Elias

From the decision · page 1Applicant testified that he worked on Orizaba Street doing roofing work for three days, having been hired by someone name Elias (MOH/SOE, 12/15/20, at p. 3:3-4, 10-11), that Elias paid him ( id. at p. 5:18-19), and that Alfredo paid Elias. ( Id. at p.5:23-24.)

Evidence weighed

Alfredo Perez (AD&D) testified he never saw applicant or his wife and did not directly hire them

Evidence weighed

AD&D paid Elizardo Macharigue from Elias Roofing for Orizaba roof work in March/April 2014 (Exhibits D, E, F, G, H, I)

Evidence weighed

No testimony from Elias or Elizardo to rebut applicant’s testimony

From the decision · page 2No evidence rebutting applicant’s testimony, such as the possible testimony of Elizardo or Elias, was presented.

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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.
Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
If you are named in this decision and want this page removed, write to privacy@similarcase.com.

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