Archive for February, 2013

Remodeling a Bedroom an Employee Does Not Make

February 4th, 2013 No comments

As your humble blogger prepares this blog post, half of his attention is directed at the somewhat corpulent gentleman painting the ceiling of his Uncle Ivan’s home.  Uncle Ivan asked your humble blogger to keep an eye on the work as the excellent workers’ compensation skills somehow equip me to supervise actually useful labor.

This was no ordinary sight, mind you, as Uncle Ivan had gotten rid of the second and third-floor ceiling/floors to create a giant vaulted ceiling.  His hapless employee, desperate for payment, took the job without the proper equipment.  I watched as one watches a train-wreck: a pyramid of ladders, the top one resting on two below, that in turn rested on three others, and so on and so forth, had been assembled to allow this brave and self-less painter to reach the ceiling.

Now, mind you, my Uncle Ivan had not purchased workers’ compensation insurance for this gentleman, because he was not an employee… but should he fall from the ladder, he would likely claim that he was.

Fortunately, a recent panel decision was denied the Court of Appeal’s writ of review, providing hope to residents who hire labor for small jobs.

In the case of Lester Guerrero v. Duane White, a certain Mr. White hired Mr. Guerrero and his friend to patch up the roof in a room of his house.  During the work, Mr. Guerrero fell from a ladder, sustaining injury.  Fortunately for Mr. White, his homeowner’s insurance rushed to his defense, and sought to knock out the workers’ compensation claim on the grounds that Mr. Guerrero was not an employee.

Mr. Guerrero hung his proverbial hat on Labor Code section 3357, which holds person A, rendering service to person B, is presumed to be person B’s employee.  Mr. White’s insurer, however, shot back with Labor Code section 3351(d), which specifically excludes from the definition of employment those retained by an owner or occupant of a residential dwelling whose duties are incidental to ownership, maintenance, or use of the dwelling.  (Note, however, that this only goes so far… Labor Code section 3352(h) specifically limits this to those employed for less than 52 hours or paid less than $100 for the 90 days prior to the date of injury.)

Mr. Guerrero and his friend worked for less than 52 hours, so what’s the problem?

Well, the workers’ compensation Judge found that the work was not a mere handy-man’s task.  In the WCJ’s opinion, the inquiry was a factual one and the circumstances in this case leaned towards a licensed contractor job rather than a handy-man task, because the job “included redoing the ceiling… installing casing and molding, painting, and removing wood from the outside of the house … [s]uch tasks require knowledge and skill in some areas of construction work, and likely require a contractor’s license.”

The defendant petitioned the Workers’’ Compensation Appeals Board for reconsideration, arguing that the WCJ erred in finding an employment relationship.  In granting the petition, the WCAB held that the test was to determine whether the activities engaged in by the (alleged) employee “would be insignificant, as opposed to a substantial project or task.”   Because applicant was hired to do some “moderate cosmetic work,” the exception applies and the defendant is off the hook.

With my Uncle Ivan relatively safe from harm, I shifted my focus to the poor painter, and decided that holding his ladder pyramid steady was a better use of my time than planning my dear Uncle’s legal defense.

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Court of Appeal Rules Wage Continuation Counts Towards 104 Week TTD Count

February 1st, 2013 No comments

Your humble blogger once offered his condolences to his beloved readers representing and adjusting claims made against cities and counties and even the State by peace officers entitled to wage continuation.  As you may recall, in the matter of City of San Rafael v. Workers’ Compensation Appeals Board (Monte Payne), the Court of Appeal denied the City’s petition for a writ of review, allowing the workers’ compensation Judge’s and the WCAB’s findings that wage continuation under Labor Code section 4850 did not start the clock on 104 weeks of temporary disability payments (see LC section 4656.)

So… about that.

On Wednesday, the Court of Appeal issued an opinion in the case of County of Alameda v. Workers’ Compensation Appeals Board (Bryan Knittel), holding that the 104 week limitation on temporary disability payments found in section 4656 includes wage continuation paid to a Sheriff’s deputy.

Deputy Knittel sustained an industrial injury to the knee and went to temporary disability, receiving his full wages for one year after the injury.  After the wage continuation payments expired, the County started paying temporary disability, but only for one year.  At that point the well ran dry and Deputy Knittel called the cops his attorneys.

Under Payne, a police officer would be entitled to three years of payments – one at full pay, and two more at the regular temporary total disability rate.  But, the Court in Knittel held that the term “aggregate disability payments” as used in section 4656 includes wage continuation benefits as well as temporary total disability payments.

Score another victory for the defense!

In the meantime, your humble blogger will try to avoid getting pulled over by some unhappy peace officers…

angry cop meme

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