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0% Credibility? Still an Employee and NOT an IC

Alright, dear readers! WE ARE BACK!

Spring break is finally over all around, so the kids are back in school, and we can all return to focusing on the important issues facing the world such as the proper reimbursement rate for a CNA to fluff pillows or why a victim of an industrial hand amputation should only be reimbursed 50% for a pair of gloves (what if he sells the other glove on e-bay? Then he’s double dipping!)

Before I get to today’s post, quick question for you.  If a lion performing in a circus sustains injury during one of the acts, what is he to do?  Why, obviously, apply for workers’ CHOMP-ensation.  Get it? Because he’s a lion so… well, anyway.

Today I bring to your caffeinated and under-rested attention the case of Barragan v. Mission Builders Home Improvement, a panel decision recently denied review by the Court of Appeal.

The topic is, of course, everyone’s favorite: independent contractor vs. employee.  But, to add a bit of spice to the equation, not only was applicant unrepresented, the defendant was (allegedly) uninsured, dragging the Uninsured Employer Benefit Trust Fund into the mix as well!

Applicant fell through a skylight and fell twelve feet, sustaining injury to a list of body parts. At the time, he was working as a salesman and estimator.  Obviously, there was a bit of dispute as to whether this was an independent contractor arrangement, or one more befitting the title “employee.”

The matter proceeded to trial to address the issue of employment.  Applicant was trained by defendant, and was provided some equipment, while other pieces of equipment he provided himself (like a folding ladder).  He paid for his own shirts and could turn down leads and set his own schedule.  He got the luxury of using his own vehicle, and was not burdened by his generous employer with reimbursement for gas, insurance, or mileage.  Compensation was based on a commission for projects completed off of the gross profit, NOT hourly wages.

The WCJ found that applicant was an independent contractor, and he sought reconsideration, which the WCAB granted and substituted a new finding that applicant was an employee.

So, no big deal right?  Yes, big deal, because the WCJ (you know, the magistrate tasked with ascertaining credibility and observing witnesses) specifically found that the injured worker was not credible.  In footnote 4 of its opinion, the WCAB wrote that “the testimonial inconsistencies do not alter the analysis of whether applicant is an employee or an independent contractor.”

So how could the WCAB find that applicant was an employee when the WCJ determined him not to be credible?  Because, even if applicant’s testimony was completely removed from the equation, the facts provided by the defense witnesses as to the relationship between applicant and defendant sufficed to weigh the Borello factors toward a finding of employment.

So, what does that tell us on the defense side?  It doesn’t matter how poor a memory or how tattered the credibility of the applicant.  If applicant spent the entire length of the trial teaching Clams how to juggle, the evidence might still support a finding of employment.

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