Grinberg: WCAB Upholds Finding of No Employment in Residential Case

Wednesday, December 30, 2020 | 0

I bring you today the case of Garcia v. Sweet Melody Express, in which the Workers' Compensation Appeals Panel affirmed a trial judge’s finding that applicant Garcia was not an employee of defendant.

Gregory Grinberg

The facts are pretty straightforward: Applicant claimed an industrial injury while working for defendant as a housekeeper 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 trial 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 housekeeper, 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 was applicant excluded under subsection (8)(a), requiring that in the 90 days prior to the date of injury, the employee worked fewer than 52 hours or was to be paid less than $100 in wages?

The judge 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 me 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 here that, when arising out of employment/course of employment is denied, the burden of proof lies with the applicant. 

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.