Grinberg: WCAB Upholds Discovering of No Employment in Residential Case| Employees Compensation Information

By Gregory Grinberg

Wednesday, December 30, 2020 | 84 | 0 | min read

I bring you today the Garcia v Sweet Melody Express case, in which the Appellate Body on Compensation for Workers upheld a trial judge’s finding that plaintiff Garcia was not an employee of the defendant.

Gregory Grinberg

The facts are pretty simple: the applicant filed for an industrial accident in 2014 while working as a housekeeper for the defendant. The defendant was a self-employed clothes seller (weddings and others). Sweet Melody Express had no employees (or a defendant) and no employee compensation insurance.

The first process in this matter dealt with the issue of employment: was the complainant an employee of the defendant in the sense that she was a domestic servant, i.e. a housekeeper, under Section 3351 (d) of the Labor Code (“any person who works for the Owner or occupant of a dwelling whose duties are connected with the ownership, maintenance or use of the dwelling ”) or the applicant has been excluded under subsection (8) (a) and so requests in the 90 days prior to the date of the infringement, The Employee worked less than 52 hours or should be paid less than $ 100?

The judge concluded that the complainant was not an employee of the defendant, whether as an employee of the defendant as an individual or as a conventional employee of the defendant’s business. Although the facts show that the applicant worked for Sweet Melody Express on occasion, at the alleged time of the injury, the applicant went to the defendant’s home for cleaning. The applicant requested re-examination.

Upon re-examination, the WCAB initially found that the burden of proof lies with the movable part, and the complainant was unable to prove her case by overweighting the evidence.

In all likelihood, evidence of more than $ 100 in the 90 days prior to the date of injury or evidence of more than 52 hours in the 90 days prior to the date of injury would have worn the day. The fact that this evidence has not been presented would lead me to speculate that it does not exist.

So no employment, no replaceable injury.

In this case, it looks like the WCAB has adopted the previously discussed mantra that the burden of proof rests with the applicant if the creation of an employment / employment history is denied.

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