WCDefenseCA

Hello, dear readers!

A couple of weeks ago, this blog discussed the matter of Garcia v. Lai, where a split panel found that a landlord’s handyman, while working on the landlord’s personal home, fell under the scope of the home-owners’ workers’ compensation policy, rather the uninsured arena that would have opened up had the injured worker been found to be an employee of the rental apartment venture.

Now, dear readers, I bring you the case of Arnold v. Pingrey, a case recently denied review by the WCAB.  The fire is very similar in each of the two cases – is the injured worker an employee of the business venture, or someone just doing work on a house?  But the smoke has… shall we say… a very distinct aroma in the Arnold case.

Based on what’s reported in the WCAB’s split panel opinion and the WCJ’s report and recommendation, Pingrey had a marijuana operation at his house, with three small gardens growing to feed the reefer madness in the Bay Area.  While Mr. Pingrey, who was later the target of police attention, was not convicted of any crimes, he did enter a diversion program.

In any case, prior to this brush with the fuzz, Mr. Pingrey and applicant Arnold struck a bargain – Mr. Arnold would travel from the East to live in Mr. Pingrey’s home.  He would work on the house, cook and clean, and help maintain the marijuana plants.  In exchange, Mr. Arnold was to receive $500 per week, room and board, and a detailed and advanced course in marijuana farming.

All was going well, until applicant and his employer confronted an armed intruder, who shot applicant, resulting in paralysis.  From the WCJ’s report and recommendation, it appears that Mr. Arnold suffered paralysis and is now confined to a wheelchair.

Naturally, applicant sought to pursue workers’ compensation benefits, but there’s no one to pursue – Mr. Pingrey had no workers’ compensation insurance, and, from what I gather in reading the R&R and the WCAB opinion, there doesn’t appear to have been a homeowner’s policy either, unlike the case in Garcia v. Lai.

The Uninsured Employer Benefit Trust Fund became the target in this case, as no other targets were available, and promptly denied the claim, arguing that, as applicant was engaged in an illegal business, there is no coverage to be provided, nor would a homeowner’s policy have covered the “venture” either.

When the matter proceeded to trial, however, the WCJ found that under Labor Code section 3351(d), applicant a “person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling…”  After all, applicant was living at Mr. Pingrey’s home and performing work on the house, ranging from construction work to cooking and cleaning.

UEBTF sought reconsideration, relying on the rest of the language of 3351(d): “… or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant.”

The WCAB issued a split panel, with the majority finding that applicant had been a residential employee, and was thus entitled to benefits.

But there was a dissent…

One commissioner reasoned that applicant was working for the marijuana operation, and so his duties were “in the course of the trade, business, profession, or occupation of” the owner of the residence (Labor Code section 3352).

Here are your humble blogger’s thoughts on this matter: applicant could, reasonably argue that he really had concurrent employment.  On the one hand, he was being paid $500 a month and provided room and board to take care of defendant’s house and household (cooking, cleaning, child care, etc.)  Applicant also had a second job – assisting his employer in growing and selling marijuana, in exchange for being taught how to do the same.

The injury was the result of confronting an armed intruder – was this part of his duties in the household or the marijuana operation?  As we’ve seen before in the Rincon matter, the reason why a worker was shot matters.  If it was incidental to the job, it is compensable, if it is a personal matter, even if it happens at work, it probably will not be compensable.

Can we apply the same logic to these two employments?  If applicant was shot in the discharge of his duties for one, and not the other, shouldn’t that guide the resolution?  Your humble blogger doesn’t have the facts related to the robbery itself, but if the majority of what was taken (if anything) was the marijuana, then it would appear that the injury resulted as part of the marijuana internship, rather than the household/residential job.  If such is the case, it would appear that the injury was sustained as part of an illegal business that would not be covered by a homeowner’s policy, even if defendant had one.

Additionally, it seems a question of fact whether there were two distinct jobs in the first place, as applicant moved in with defendant specifically to learn how to grow marijuana, and the rest of his duties were part of the bargained-for exchange.

Finally, although the terms are coached as an employment relationship, both from applicant and defendant, it seems that there is almost a partnership in place with these facts.  It is not uncommon for partners to have different duties – brains vs. brawn, business vs. talent, name recognition vs. leg work.  Although the terms included pay from one party to the other, given the exchange involved it seems almost like a partnership for an illegal venture.  (Just a crackpot legal theory, dear readers – my research doesn’t actually include trying the products discussed above…)

The case is a very tragic one, of course, but, despite recent laws in various states, Marijuana remains illegal on the Federal level, and the manufacture and sale of drugs, in general, continue to be intertwined with violent crime.  UEBTF being charged with providing benefits in a case such as this somehow seems like an incorrect result.