WCAB Upholds Finding of No Employment in Residential Case - Greg Grinberg
This article is reposted from WCDefenseCA.com, a blog published by Gregory Grinberg, Managing Partner of Gale, Sutow & Associates SF Bay South Office. The opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of Gale, Sutow & Associates.
Happy Monday, dear readers! Well, we really are coming to the end of a stand-out year, aren’t we? Just around the corner is December 31 that will see us into 2021. As the last few grains of sands slip out of this year and the new one is fast approaching, will you join me for another blog post discussing everyone’s favorite subject for party conversation and romantic poems? I’m speaking of course, of California’s workers’ compensation system!
I bring you today the case of Garcia v. Sweet Melody Express, in which the WCAB affirmed the trial judge’s finding that applicant Garcia was not an employee of defendant. The facts are pretty straight forward – applicant claimed an industrial injury while working for defendant as a housekeeper back in 2014. Defendant was a self-employed dress seller (weddings and otherwise). Having no employees (or so Defendant maintained), Sweet Melody Express did not have workers’ compensation insurance.
The initial trail in this matter was on the subject of employment – was applicant an employee of defendant in the sense that she was a residential employee, to wit, a house keeper, under Labor Code section 3351(d) (“any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling…”) or whether applicant was excluded under subsection (8)(a) (requiring that in the 90 days prior to the date of injury, the employee worked less than 52 hours or was to be paid less than $100 in wages).
The WCJ concluded that applicant was not an employee of defendant, whether as a residential employee of defendant as an individual or as a conventional employee of defendant’s business. Although the facts support that applicant on occasion may have worked for Sweet Melody Express, on the alleged date of injury applicant went to defendant’s home to clean it. Applicant sought reconsideration.
On reconsideration, the WCAB noted, initially, that the burden of proof lies with the moving part, and applicant failed to prove her case by a preponderance of the evidence. In all likelihood, producing evidence of more than $100 in payment in the 90 days prior to the date of injury, or showing proof of working more than 52 hours in the 90 days prior to the date of injury would have carried the day. The fact that this evidence was not produced would lead your humble blogger to speculate that it doesn’t exist.
So, no employment, no compensable injury.
In this case, it looks like the WCAB adopted the mantra previously covered by this blog that, when AOE/COE is denied, the burden of proof lies with the applicant.
Have a good week, dear readers!