EMPLOYMENT General v. special employee relationship–The right to control an employee is the primary consideration in determining whether a special relationship exists. (See Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 575.) What is relevant is the right to supervise and not whether the right is exercised. Control need not be exercised. It is sufficient if the right to direct the details of the work is present. (See Wedeck v. Unocal Corp (1997) 59 Cal.App.4th 848.) Kenneth Johnson v. John Deere Landscapes Inc. 10 WCAB Rptr. 10,123 ___Cal.App.4th___

EMPLOYMENT - General vs. special employment relationship–When an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers—his original or "general" employer and a second, the special employee. (See Kowalski v. Shell Oil Company (1979) 23 Cal.3d 168.) [Writ Denied]

EMPLOYMENT - General vs. special employment relationship–Although the issue of control is the primary criterion in determination of the existence of a special employment relationship, other factors also have been enumerated: (1) whether the borrowing employer's control over the employee and the work he is performing extends beyond mere suggestion of details or cooperation; (2) whether the employee is performing the special employer's work; (3) whether there was an agreement, understanding, or meeting of the minds between the original and special employer; (4) whether the employee acquiesced in the new work situation; (5) whether the original employer terminated his relationship with the employee; (6) whether the special employer furnished the tools and place for performance; (7) whether the new employment was over a considerable length of time; (8) whether the borrowing employer had the right to fire the employee; and (9) whether the borrowing employer had the obligation to pay the employee. (See Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242, 1250.) McKesson Corporation v. Workers' Compensation Appeals Board (Harold Randall) 10 WCAB Rptr. 10,098 [Writ Denied]

EMPLOYMENT - Status as an employee vs. independent contractor–For purposes of workers' compensation insurance, persons who make deliveries of newspapers for a newspaper distributor are employees. Antelope Valley Press v. California Insurance Commissioner 10 WCAB Rptr. 10,072 ___Cal.App.4th___

EMPLOYMENT - Independent contractor vs. employee status–Labor Code §3353 defines an independent contractor as "any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work and not as to the means by which such result is accomplished." [Writ Denied]

EMPLOYMENT - Independent contractor vs. employee status–Though an important test of an employment relationship, the "right to control" is not to be applied rigidly as the sole consideration, but rather to be considered in combination with a number of "secondary" factors . (See S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 341.) The secondary factors include whether either party, the employer or the worker, has the right to terminate relationship at will without occurring liability, or whether the termination is limited by a requirement of unsatisfactory performance or for good cause. The former is indicative of an employment relationship, while the latter supports a finding of independent contractor status. Liberty Mutual Insurance Company v. Workers' Compensation Appeals Board (Melanie Bailey, Robert Bailey (deceased).) 10 WCAB Rptr. 10,076 [Writ Denied]

EMPLOYMENT - General vs. special employer–General and special employers and their insurers are both liable for the work-related injuries of their common employees, because general and special employees have joint and several liability for their general and special employees. (See Miller v. Long Beach Oil Development Company (1959) 167 Cal.App.2d 546.) [Writ Denied]

EMPLOYMENT - General vs. special employer–In situations where a general and special employment relationship exist, the injured employee may look to both employers for compensation benefits. (See Kowalski v. Shell Oil Company (1979) 23 Cal.3d 168.) [Writ Denied]

EMPLOYMENT - General vs. special employer–A business liability agreement entered into by a general and special employer cannot alter, change or defeat a general and a special employee's right to obtain workers' compensation benefits of his employers because the employers have joint and several liability with regard to their common employees. (See Miller v. Long Beach Oil Development Company (1959) 167 Cal.App.2d 546.) Nike USA v. Workers' Compensation Appeals Board, California Insurance Guarantee Association (Jose Sandoval) 10 WCAB Rptr. 10,081 [Writ Denied]

EMPLOYMENT - Status as an employee vs. independent contractor-In this case involving a cab driver, the relationship with the cab company was established by a verbal agreement, acceptance by the cab company of a driver's license and approval by the taxi commission and not by the written lease agreement between the cab company and another driver whom the cab was leased to. In this case, the cab company permitted the injured driver to fill in the off hours of the primary driver to whom the cab was leased. [Writ Denied]

EMPLOYMENT - Status as a general or special employee– A special employment relationship arises when an employer lends an employee to another employer and relinquishes to the borrowing employer all right of control over the employee's activities. The borrowed employee is held to have two employers: his original, or general, employer and a second, the special employer. In this dual-employer situation, the employee is generally limited to a statutory workers' compensation remedy for injuries he received in the course of his employment with the special employer. The employee may not bring a separate tort action against either employer. (Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242.) EMPLOYMENT - Status as a borrowed employee– A variety of factors are relevant in determining whether an employee is the borrowed employee of another: (1) whether the borrowing employer's control over the employee and the work performed extends beyond mere suggestion of details or cooperation; (2) whether the special employer possessed the power to fire the employee; (3) whether there was an agreement, understanding, or meeting of the minds between the parties; (4) whether the employee acquiesced in the situation; (5) whether the original employer terminated his relationship with the employee; (6) whether the employer furnished the tools and place of performance; (7) whether the new employment was lengthy; (8) whether the borrowing employer had the obligation to pay the employee; and (9) whether the work performed was unskilled. (Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 857 (Wedeck); Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195.) Emilio Morales Zavala v. James R. Jones dba JEB Farms 9 WCAB Rptr. 10,151 ___Cal.App.4th___

EMPLOYMENT STATUS - Employee vs. independent contractor–In this case, a short-haul truck driver operating under an Independent Contractor Transportation Agreement was found to be an employee, not an independent contractor, because the transportation agreement provided the driver was contractually prohibited from leasing his services and truck at will and he did not possess all the necessary permits but used permit numbers provided by the company, including an Interstate Commerce Commission number, a Public Utilities Commission number, and a State of California permit number. Trans Ocean Carriers, Inc. v. Workers' Compensation Appeals Board (Jose R. Estrada) 9 WCAB Rptr. 10,159 [Writ Denied]

EMPLOYMENT - Labor Code §3602(d) provides that an employer may secure the payment of compensation on employees provided to it by agreement by another employer by entering into a valid and enforceable agreement with that other employer under which the other employer agrees to obtain, and has, in fact obtained workers' compensation coverage for those employees. EMPLOYMENT - Employee vs. contractor status–Neither contractor status nor the employment relationship may be determined in workers' compensation matters by reference to technical contract principles or common law exceptions of employment, but must be resolved by reference to the history and fundamental purposes underlying the Workers' Compensation Act. (See S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.) PES Payroll v. Workers' Compensation Appeals Board (Dean Harvey) 9 WCAB Rptr. 10,130 [Writ Denied]

EMPLOYMENT STATUS - Residential employees–Labor Code §3352–A property management company acting on behalf of a homeowners association is not exempt from liability for workers' compensation benefits under Labor Code §3352. Robert P. Heiman v. Workers' Compensation Appeals Board (Freddie Aguilera) 9 WCAB Rptr. 10,092 ___Cal.App.4th___

EMPLOYMENT STATUS - Residential employees–Labor Code §3351(d)–Adult caregivers attending the owner or occupant of a residential dwelling were residential employees because their duties were personal services not in the course of a trade, business, profession, or occupation of the owner or occupant. Farmers Insurance Group of Companies/Fire Insurance Exchange Company v. Workers' Compensation Appeals Board, Pacific Specialty Insurance Company (Carrie Bell) (Georgia Berry) 9 WCAB Rptr. 10,026___Cal.App.4th___

EMPLOYMENT STATUS - Court interpreter is an independent contractor–Interpreter was an independent contractor. She was paid a per diem for her services in the county court system, was paid her own health benefits, was ineligible for county retirement benefits, was not covered by the civil service system, received an IRS 1099 form, and was responsible for her own taxes and Social Security payments. Bertha Jobbagy v. Workers' Compensation Appeals Board, County of Los Angeles 8 WCAB Rptr. 10,370 [Writ Denied]

EMPLOYMENT STATUS-Generally, absent any statute imposing liability, an owner or general contractor is not liable under workers' compensation for injury to the employee of an independent contractor hired by the general contractor. See State Comp. Ins. Fund v. Ind. Acc. Com. (1941) 46 Cal.App.2d 526.) If the person hired by an owner or general contractor is an employee rather than an independent contractor, the general contractor may be liable under workers' compensation for injuries to persons hired by the employee, on the theory that such persons are also the general contractor's employees. (See Blew v. Horner (1986) 187 Cal.App.3d 1380.) [Writ Denied]

EMPLOYMENT STATUS-Labor Code §2750.5 was enacted to impose workers' compensation liability on those who hire unlicensed contractors should either the unlicensed contractor or his employees be injured on the job for which a license is required. An exception to this rule involves the type of work and materials that would otherwise require licensing, involving the sale or installation of any finished products, materials or articles of merchandise that do not become a fixed part of the structure. (See Labor Code §7045.) Thomas Krausz v. Workers' Compensation Appeals Board (Athol Fahey) 8 WCAB Rptr. 10,320 [Writ Denied]

EMPLOYMENT-Status as an employee—There is a presumption that one rendering services for another is an employee under Labor Code §3357. The burden is on the employer to show that the applicant was an independent contractor. The label placed by the parties on their relationship is not dispositive. (See S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.) Skyspares Parts, Inc. v. Workers' Compensation Appeals Board (Brian Henry) 8 WCAB Rptr. 10,326 [Writ Denied]

EMPLOYMENT STATUS-Independent contractor vs. employee—The primary indicator that distinguishes an independent contractor from an employee is the right to control the method and means of accomplishing the tasks. (See S.G, Borello & Sons v. Department of Industrial Relations (1989) 48 Cal.3d 341.) The decisive test of right to control, not only as to results, but also to the manner in which the work is accomplished involves individual factors which cannot be mechanically applied as separate tests, but are intertwined, and their weight depends on the particular facts of a given case. Reynaldo Sandoval v. Workers' Compensation Appeals Board, Dawes Transport Incorporated 8 WCAB Rptr. 10,323 [Writ Denied]

EMPLOYMENT - Partnership status–In this case, the injured worker worked in a profit-sharing relationship but a partnership relationship was not formally established because the injured worker's name was not added to the contractor's license as a partner. John Rea, Acting Director of the Department of Industrial Relations, as Administrator of the Uninsured Employers Benefit Trust Fund v. Workers' Compensation Appeals Board, Michael Nickerson, individually and dba West Coast Tree Service (Nicholas Rindon) 8 WCAB Rptr. 10,307 [Writ Denied]

OFF-DUTY VOLUNTARY PARTICIPATION IN OFF-DUTY ATHLETIC ACTIVITY - When an off-duty police officer assigned to a SWAT unit is injured in off-duty athletic activity to maintain physical fitness required of a SWAT assignment, is there a substantial nexus between the employer's expectations or requirements and the specific off-duty activity the employee is engaged in at the time of injury? David Tomlin v. Workers' Compensation Appeals Board, City of Beverly Hills 10 WCAB Rptr. 10,028 [Writ Granted]

EMPLOYMENT STATUS - Employee vs. independent contractor-A courier company's drivers were properly classified as employees, as opposed to independent contractors, thereby requiring the company to comply with Labor Code §3700 by providing the drivers with workers' compensation coverage. (See generally S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.) In this case, it was determined that the drivers were not engaged in occupations or businesses distinct from those of the company, and their work was the basis for the company's business despite the fact that the drivers owned their own automobiles and cell phones, did not wear uniforms, had no particular training, chose their own driving routes, were not supervised, and could take time off when they wanted to but were not required to ask for permission to do so. JKH Enterprises, Inc. v. Department of Industrial Relations 8 WCAB Rptr. 10,303 ___Cal.App.4th___

EMPLOYMENT STATUS - Residential employees–Labor Code §3351(d)–Did the Appeals Board err when it ruled that adult caregivers attending the owner or occupant of a residential dwelling were not residential employees because their duties were in the course of a trade, business, profession, or occupation of the owner or occupant? Farmers Insurance Group of Companies/Fire Insurance Exchange Company v. Workers' Compensation Appeals Board, Pacific Specialty Insurance Company (Carrie Bell) (Georgia Berry) 8 WCAB Rptr. 10,289 [Writ Granted]

EMPLOYMENT STATUS - Residential employees–Labor Code §3352–Is a management company acting on behalf of a homeowners association exempt from liability for workers' compensation benefits under Labor Code §3352? Robert P. Heiman v. Workers' Compensation Appeals Board (Freddie Aguilera) 8 WCAB Rptr. 10,290 [Writ Granted]

EMPLOYMENT STATUS-Labor Code §2750.5 creates a rebuttable presumption that a worker performing services for which a license is required is an employee and not an independent contractor. A valid license is required as a condition of independent contractor status. Accordingly, the presumption that the person who employs the unlicensed contractor is the employer is conclusive. (See Cedillo v. Workers' Comp. Appeals Bd. (2003) 106 Cal.App.4th 227, 5 WCAB Rptr. 10,075.) Ernesto Mendoza v. Glenn Brodeur 8 WCAB Rtpr. 10,255 ___Cal.App.4th___

EMPLOYMENT STATUS-An injury occurring during a time the individual is not paid occurs in the course of employment when the activity leading to the injury is a "reasonable expectancy" of the employment. (See Ezzy v. Workers' Comp. Appeals Bd. (1983) 146 Cal.App.3d 252.) [Writ Denied]

EMPLOYMENT STATUS-An injury is considered to arise out of employment when there is a causal relationship between the employment and the injury. (See LaTourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644.) Harris Rebar, Inc. v. Workers' Compensation Appeals Board (Gabriel Xijun) 8 WCAB Rptr. 10,241 [Writ Denied]

EMPLOYMENT STATUS-Whether an individual is an employee for workers' compensation purposes does not require that applicant receive actual compensation for his services to fall within the workers' compensation scheme. (see Laeng v. Workers' Comp. Appeals Bd. (1972) 6 Cal.3d 771.) [Writ Denied]

EMPLOYMENT STATUS-Employee v. independent contractor–The right of control over the mode and manner in which the work is done is the most significant test of the employment relationship, and other factors are secondary. (See Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943.) Maria Facundo v. Workers' Compensation Appeals Board, Valley Properties, Inc. 8 WCAB Rptr. 10,161 [writ denied]

EMPLOYMENT STATUS-Principal/agent relationship–As a general rule, where a franchise agreement gives the franchisor the right of complete or substantial control over the franchisee, an agency relationship exists. (See Cislaw v. Southland Corporation (1992) 4 Cal.App.4th 1284.) It is the right to control the means and manner in which the result is achieved that is significant in determining whether a principal-agency relationship exists. (See Wickham v. Southland Corp. (1985) 168 Cal.App.3d 49.) [writ denied]

EMPLOYMENT STATUS - Principal/agency relationship–If, in practical effect, one of the parties has the right to exercise complete control over the operation of the other, an agency relationship exists. (See Nichols v. Arthur Murray, Inc. (1967) 248 Cal.App.2d 610.) [In this case, as the principal it was properly found liable for the failure to maintain workers' compensation coverage for its employees as required by law.] Merry Maids v. Workers' Compensation Appeals Board (Gloria Fuentes-Arvizm) 8 WCAB Rptr. 10,163 [writ denied]

EMPLOYMENT- Dual employer theory of responsibility for workplace safety–Labor Code §5401.7 requires a primary employer to establish, implement and maintain an effective injury prevention program for employees leased to a secondary employer. The program must include training applicable to the work for which the employee is leased and monitoring of the secondary employer to ensure the safety program is implemented. Sully-Miller Contracting Company v. California Occupational Safety and Health Appeals Board 8 WCAB Rptr. 10,124 ___Cal.App.4th___

EMPLOYMENT- Employee of a homeowner–Is an applicant, who is not an employee of a homeowner under Labor Code §3352(h) because in the 90 days prior to his injury he had not both worked at least 52 hours and earned more than $100.00, nevertheless an employee of the homeowner under Labor Code §3715(b), if either the work being performed was contemplated to last more than 10 days or the total labor cost was at least $100.00? Wayne and Laurie Charkins, California State Automobile Association Inter-Insurance Bureau v. Workers' Compensation Appeals Board (Paul Hestehauge) 8 WCAB Rptr. 10,029 [Writ Granted]

EMPLOYMENT STATUS– Illegal immigration status– The Federal Immigration Reform and Control Act of 1986, which makes it unlawful to knowingly hire undocumented aliens, does not preempt a state such as California from enacting a law providing workers' compensation benefits to an undocumented injured worker. Farmers Brothers Coffee v. Workers' Compensation Appeals Board (Rafael Ruiz) 7 WCAB Rptr. 10,323 ___Cal.App.4th___

EMPLOYMENT– Presumption favoring finding of employment– Labor Code §3351 creates a presumption of employment where a person renders a service for another; it is the employer's burden to establish the absence of the employment relationship. (See California Compensation Insurance Company v. Workers' Comp. Appeals Bd. [Hernandez] 63 Cal.Comp.Cases 844 [writ denied].) Coast Plumbing, Inc., v. Workers' Compensation Appeals Board (Jorge A. Palacio) 7 WCAB Rptr. 10,334 [Writ Denied]

EMPLOYMENT– When the general employer is a temporary employment agency and the business to which the employee is assigned has the right of supervision and direction of the employment duties, a special employment relationship exists. While control is sometimes a question of fact, if sufficient control exists, then there is a special relationship as a matter of law. (See Santa Cruz Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575.) Elizabeth Valles v. Health Net of California 7 WCAB Rptr. 10,326 ___Cal.App.4th___

EMPLOYMENT– A worker may be estopped to deny that he held a valid contractor's license on the date of injury, if the worker misled the alleged employer and the alleged employer relied on a misrepresentation regarding a contractor's license. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Meier) (1985) 30 Cal.Comp.Cases 562.) Beeter Bakerjian v. Workers' Compensation Appeals Board, SP Carpet Pros 7 WCAB Rptr. 10,270 [Writ Denied]

EMPLOYMENT– Special employee– A special employment relationship occurs when one employer lends another employer an employee, relinquishing all control over the employee's activities. The employee has an original employer and second or special employer. In this dual-employer situation, the employee is generally limited to a statutory workers' compensation remedy for injuries he receives in the course of the employment with the special employer and may not bring a separate tort action against either employer. (See Wedeck v. Unocal. Corp. (1997) 59 Cal.Capp.4th 848.) Marco Magallon v. County of Merced 7 WCAB Rptr. 10,253 ___Cal.App.4th___

EMPLOYMENT– Residential employee– Labor Code §3352– Any person employed for fewer than 52 hours during the 90 calendar days immediately prior to the date of injury is not considered an employee for purposes of workers' compensation. Jose Cruz v. Workers' Compensation Appeals Board, Muriel Balian 7 WCAB Rptr. 10,224 [Writ Denied]

EMPLOYMENT– Labor Code §3357 raises a presumption that any person rendering a service for another, other than an independent contractor or unless expressly excluded, is presumed to be an employee. In this case, the parties stipulated that the applicant sustained an injury while performing service for the alleged employer and therefore the burden of proof shifted to the defendant to show that applicant was not an employee within the meaning of the residential employee exception set forth in Labor Code §3352. Victor Drai v. Workers' Compensation Appeals Board (Carlos Peraza) 7 WCAB Rptr. 10,223 [Writ Denied]

EMPLOYMENT– Employee of a residential owner– Labor Code §3352(h)– When a homeowner hires an unlicensed contractor and the unlicensed contractor's employee is injured, but neither the unlicensed contractor nor the employee have satisfied the 52-hour requirement of Labor Code §3352(h), the unlicensed contractor may be the employer of the injured worker for purposes of workers' compensation, and if the unlicensed contractor is uninsured, then the Uninsured Employers Fund may be subject to liability. (See Cedillo v. Workers' Comp. Appeals Bd. (Rodriguez) (2003) 106 Cal.App.4th 227, 5 WCAB Rptr. 10,075.) Joseph Cohen v. Workers' Compensation Appeals Board (Martha Recinos Barillas) 7 WCAB Rptr. 10,188 [Writ Denied]

EMPLOYEE– Independent contractor vs. employee– Labor Code §3357–A person performing services for another is presumed to be an employee. The label placed on the parties by agreement is not dispositive of the relationship. State Compensation Insurance Fund v. Workers' Compensation Appeals Board (Jose Medrano) 7 WCAB Rptr. 10,187 [Writ Denied]

EMPLOYMENT STATUS– Labor Code §3351–In determining whether an applicant is an employee, one must look to a contract of hire, express or implied, as well as the substance and essence of the relationship between applicant and the employer at the time of the injury. (See Anaheim General Hospital v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 468.) Hartford Fire Insurance Company v. Workers' Compensation Appeals Board (Marc S. Deane) 7 WCAB Rptr. 10,136

EMPLOYMENT STATUS– Labor Code §3351–Persons are in the service of the employer when they subject themselves to the employer's control, and the employer, in turn, assumes responsibility for directing their activities. (See Laeng v. Workers' Comp. Appeals Bd. (1972) 6 Cal.3d 771.) Hartford Fire Insurance Company v. Workers' Compensation Appeals Board (Marc S. Deane) 7 WCAB Rptr. 10,136

EMPLOYMENT STATUS– Illegal immigration status–Did the Appeals Board err in not finding that the Federal Immigration Reform and Control Act of 1986, which makes it unlawful to knowingly hire undocumented aliens, preempts a state such as California from enacting a law providing workers' compensation benefits to an injured worker? Farmers Brothers Coffee v. Workers' Compensation Appeals Board (Rafael Ruiz) 7 WCAB Rptr. 10,135

EMPLOYMENT– Special employment relationship–The primary consideration in determining whether a special employment relationship exists is whether the special employer has the right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not. (See Kowalksi v. Shell Oil Co. (1997) 59 Cal.App.4th 848.) Franklin Kates v. Ed Grush General Contractor, Inc. 6 WCAB Rptr. 10,330

EMPLOYMENT– Employee vs. Independent Contractor status–Factors to be considered when determining employee vs. independent contractor status include: (a) whether the one performing services engaged in a distinct occupation or business, (b) the kind of occupation, with reference to whether the work is usually done under the direction of the principal or by a specialist without supervision, (c) the skill required in the particular occupation, (d) whether the principal or the worker supplies the instrumentalities, tools and place of work for the person doing the work, (e) the length of time for which services are to be performed, (f) the method of payment, whether by the time or by the job, (g) whether or not the work is part of the regular business of the principal, and (h) whether or not the parties believe they are creating the relationship of employer-employee. (See S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.) Santa Rosa City Schools v. Workers' Compensation Appeals Board (Mary Pappas) 6 WCAB Rptr. 10,285

EMPLOYMENT STATUS– Labor Code §2750.5(c)–The bona fide independent contractor status is evidenced by the presence of such factors as: (a) substantial investment other than personal services in the business; (b) holding out to be in business for oneself; (c) bargaining to contract to compete for a specific project for compensation by the project rather than by time; (d) control over the time and place the work is performed; (e) supplying the tools or instrumentalities used in the work not ordinarily supplied by employees; (f) hiring of employees by the independent contractor; (g) performing work that is not ordinarily in the course of the principal's work; (h) performing work that requires a particular skill; (i) holding a license pursuant to the Business and Professions Code; (j) the intent of the parties that the work relationship is one of independent contractor status; (k) that the relationship is not severable or terminable at will by the principal but would give rise to an action for breach of contract. Toro Sanders v. Workers' Compensation Appeals Board, AG Trucking, Alco Transportation, Uninsured Employers Fund 6 WCAB Rptr. 10,282

EMPLOYMENT STATUS– Joint employment– Joint employment occurs when a single employee, under contract with two employers, and under the simultaneous control of both, performs services for both employers, and when the service for each employer is the same as, or is closely related to, that for the other. In such a case, both employers are liable for workers' compensation. University of California San Francisco v. Workers' Compensation Appeals Board (Randy S. Hogan) 6 WCAB Rptr. 10,266

EMPLOYMENT STATUS– Credit for concurrent employment–Generally, credit will be allowed the employer for amounts earned by the injured worker while the worker is being paid temporary disability. (See Kosowski v. Workers' Comp. Appeals Bd. (1985) 170 Cal.App.3d 632.) [In this case, the injured worker's concurrent work was found not to be an employment relationship because the worker did not work under the supervision of a principal, had no particular skill, she was not provided any tools, her pay was not based on her services, and there was no intention of creating an employer-employee relationship.] Santa Rosa City Schools v. Workers' Compensation Appeals Board (Mary Pappas) 6 WCAB Rptr. 10,220

EMPLOYMENT STATUS– Labor Code §3357– Any person rendering service for another, other than an independent contractor, is presumed to be an employee. The term "rendering service" means that the applicant's conduct is for the employer's benefit and is under the employer's control. (See Laeng v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 771.) Q.B.E. Insurance v. Workers' Compensation Appeals Board, State Compensation Insurance Fund (Ashley Knight) 6 WCAB Rptr. 10,206

EMPLOYMENT– Employee v. Independent Contractor– The determination of employee or independent contractor status is one of fact if dependent upon the resolution of disputed evidence or inferences. If the evidence is undisputed, the question becomes one of law. The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced. (See Germann v. Workers' Comp. Appeals Bd. (1981) 123 Cal.App.3d 776.) Beverly Hills Cab Company v. Workers' Compensation Appeals Board (Kamo Muradyan) 6 WCAB Rptr. 10,173

EMPLOYMENT– Employee v. Independent Contractor– The principal test of the employment relationship is whether the person to whom services are rendered has the right to control the manner and means of accomplishing the result desired. (See F.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.) Beverly Hills Cab Company v. Workers' Compensation Appeals Board (Kamo Muradyan) 6 WCAB Rptr. 10,173

EMPLOYMENT– Employee v. Independent Contractor– The statutory test of control may be satisfied even when complete control or control over details is lacking in the case in which the principal retains pervasive control over operations as a whole, the worker's duties are an integral part of the operation, the nature of the work makes detailed control necessary, and adherence to statutory purpose favors a finding of coverage. (See Yellow Cab and Golden Eagle Insurance Company v. Workers' Comp. Appeals Bd. (Edwinson) (1991) 226 Cal.App.3d 11288.) Beverly Hills Cab Company v. Workers' Compensation Appeals Board (Kamo Muradyan) 6 WCAB Rptr. 10,173

EMPLOYMENT STATUS– Special Employment Relationship– When the general employer is a temporary employment agency and the business to which the employee is assigned has the right of supervision and direction of the employment duties, the result is the existence of a special employment relationship. (See Santa Cruz Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575.) Robert Dove v. Workers' Compensation Appeals Board, Contractors Labor Pool. 6 WCAB Rptr. 10,140

PERSONAL COMFORT AND CONVENIENCE DOCTRINE– Under this doctrine, the course of employment is not considered broken by certain acts necessary for the life, comfort, and convenience of the employee at work. The rationale is that such acts, though strictly personal to the employee and not acts of service, are incidental to service because they improve the efficiency of the employee and thereby benefit the employer. (See Todd v. Workers' Comp. Appeals Bd. (1988) 198 Cal.App,3d 757.) James Mason v. Lake Dolores Group, LLC. 6 WCAB Rptr. 10,116

EMPLOYMENT STATUS– There are many factors to be considered in determining whether an employment relationship exists. It has long been recognized that the right to control the work details is an important factor, but there are other strong indicia of employment status, including but not limited to: 1) the right to discharge at will; (2) whether one is performing the services is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the services are performed; (7) the method of payment, whether by the time or by the job; (8) whether or not the work is part of the regular business of the principal; and (9) whether or not the parties believe they are creating the relationship of employer-employee. (See Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Ca.3d 341.) [In this case, a massage therapist working in the office of a chiropractor was found to be an employee of the chiropractor based primarily on the chiropractor's right to control the massage therapist's activities and his ability to terminate the relationship at will. This finding was upheld despite evidence that the therapist had a business license, supplied the instrumentalities for her services, was paid without deduction for taxes and Social Security and declared her income to be self-employment income on her income tax return.] Brad Gunderson, D.C. V. Workers' Compensation Appeals Board (Robin Andrews) 5 WCAB Rptr. 10,342

EMPLOYMENT– In this case, the president of a corporation hired a couple to serve him personally. The documentary evidence was undisputed that applicant was placed on the payroll of the corporation and no law was cited that would establish that the act of hiring the couple was unlawful and should be characterized as strategy to avoid a legal consequence. The WCJ properly found the applicant to be an employee of the corporation. Joe Kerley Lincoln Mercury v. Workers' Compensation Appeals Board (Carole Fieldhouse) 5 WCAB Rptr. 10,247

EMPLOYMENT– General/Special employment relationship– In cases of general and special employment, one employer (the general employer) lends a worker to a second employer (the special employer), and the employee is simultaneously in the service of both employers. The general employer need not relinquish all control over the worker for a special employment relationship to arise. There are specific guidelines to determine whether a special employment relationship has arisen: whether the borrowing employer's control over the employee and the work he performs extends beyond mere suggestion of details and cooperation; whether the employee is engaged in the borrower's work; whether the employee acquiesced to the new work situation; whether there was an agreement or meeting of the minds between the borrowing and lending employers; whether the original employer terminated its relationship with the employee; whether the borrowing employer furnished the tools and place of performance; whether new employment was for a considerable length of time; whether the borrowing employer had the obligation to pay the employee; and whether the borrowing employer had a right to fire the employee. Old Dominion Freight Lines v. Workers' Compensation Appeals Board (Juan Garrido) 5 WCAB Rptr 10,230

EMPLOYMENT– Residential employee exception– Labor Code §3352(h)– It is well settled that an employee hired by a property owner to perform repairs on a residential dwelling meets the residential exception and is not subject to the remedy of workers' compensation. (See Cedillo v. Workers' Comp. Appeals Bd. (Rodriguez) (2003) 106 Cal.App.4th 227, 5 WCAB Rptr. 10,076.) The statute does not expressly or impliedly limit the definition of a residential building to include only a single family home or other type of single unit, nor does the statutory language require that the hirer actually reside in the subject building. (See State Farm Fire & Casualty Co. v. Workers' Comp. Appeals Bd. (1997) 16 Cal.App.4th 1187.) [In this case, the structure consisted of two four-unit buildings owned by the defendant, who did not live in either building.] Aaron Johnson v. Elaine A. Lones. 5 WCAB Rptr. 10,125

EMPLOYMENT STATUS– One of the factors to be considered in determining whether an employment relationship exists is the right to control. Other factors to be considered are (1) the right to discharge at will without cause, (2) whether the person is engaged in a distinct occupation or business, (3) whether work is done under the direction of a specialist, (4) the skill required, (5) who provides the tools and place of work, (6) length of time involved, (7) method of payment, whether by time or job, (8) work is part of the regular business of the principal, and (9) whether the parties believe they created an employment relationship. James R. McCutcheon, Legion Insurance Company v. Workers' Compensation Appeals Board (Dory McDaniels) 5 WCAB Rptr. 10,123

EMPLOYMENT STATUS– When an injured worker is hired by an unlicensed and uninsured roofing contractor and is injured after working fewer than 52 hours and earned less than $100.00 as a roofer for a homeowner, the injured worker is an employee of the unlicensed contractor and not the homeowner. Felipe Lauro Cedillo v. Workers' Compensation Appeals Board (Jaime Rodriguez) 5 WCAB Rptr. 10,075

EMPLOYMENT STATUS– May an individual who retained no control over the injured worker be found to be an employer, where that individual's license issued by the California Horse Racing Board requires the individual to secure coverage for workers' compensation. [In this case, the WCJ found the injured worker who was holding a racehorse while it was being shod by a farrier was an employee of the horse trainer and not the farrier.] James R. McCutcheon, Legion Insurance Company v. Workers' Compensation Appeals Board (Dory McDaniels) 5 WCAB Rptr. 10,013

EMPLOYMENT STATUS– A university student injured during the field portion of a class in animal husbandry is not an employee and not entitled to workers' compensation benefits. Nicole Land v. Workers' Compensation Appeals Board, Cal Poly Foundation. 4 WCAB Rptr. 10,288

EMPLOYMENT– Liability between general and special employers– As between insurers of general and special employers, one who insures the liability of the general employer is liable for the entire cost of compensation payable on account of injury occurr4ing in the course of and arising out ot the general and special employer unless the special employer had the employee on his payroll at the time of injury, in which case the insurer of the special employer is solely liable. (See Insurance Code §11663.) David Dolberg v. Workers' Compensation Appeals Board (John D. Johnson) 4 WCAB Rptr. 10,287

EMPLOYMENT– Status as an independent contractor– In this case involving a sub-haul trucking agreement, while the defendant employer maintained some measure of control to insure its customers where properly served, the applicant was responsible for his tuck, its upkeep and repairs and received pay per truck load rather than a salary. The compensation arrangement under the sub-haul trucking agreement indicated that the injured worker maintained control over his income, which is a key indicator of self-employment. Mercedes Turcios v. Workers' Compensation Appeals Board, American Pacific Forwarders. 4 WCAB Rptr. 10,284

EMPLOYMENT STATUS– If an injured worker is hired by an uninsured contractor and is injured after working less than 52 hours and earned less than $100.00 as a roofer for a homeowner, is the worker an employee of the homeowner? Felipe Lauro Cedillo v. Workers' Compensation Appeals Board (Jaime Rodriguez) 4 WCAB Rptr. 10,278

EMPLOYMENT– Employee of owner or occupant of a residential dwelling– Labor Code §3352(h)– An employee employed by the owner or occupant of a residential dwelling is not entitled to workers' compensation benefits if the person is employed for less than 52 hours during the 90 calendar days immediately preceding the date of injury. To meet the 52 hour threshold, the hours must have been actually worked or worked on the day of the injury. It is not appropriate to include future hours that may be worked in the calculation of the 52 hour threshold. Martha Recinos Barillas v. Workers' Compensation Appeals Board, Joseph Cohen, uninsured, State Farm Fire & Casualty Company. 4 WCAB Rptr. 10,253

EMPLOYMENT– Joint employment theory– In order for the joint employment theory to apply, the injured worker at the time of injury must be working jointly for the parties in question. (In this case the injured worker was working exclusively for one defendant in a hot-air balloon operation.) Stephen J. Smith, Director of the Department of Industrial Relations as Administrator of the Uninsured Employers Fund of the State of California v. Workers' Compensation Appeals Board, Michael Eakins, dba Balloons by the Sea, Jacinto Rodriguez and Michael Eakins dba Monterey Bay Aero Sportsplex (Douglas Spencer) 4 WCAB Rptr. 10,251

EMPLOYEMNT– Joint Venture– In order to find an enterprise a joint venture, each venturer must share the profits of the enterprise and have an ownership interest in the enterprise. (See Oroso v. Sun Diamond Corp. (1997) 51 Cal.App.4th 1659.) (In this case the parties accounted separately to each other for profits and expenses of two distinct business operations and accounted separately to the taxing authorities for the profits and expenses of the two businesses.) Stephen J. Smith, Director of the Department of Industrial Relations as Administrator of the Uninsured Employers Fund of the State of California v. Workers' Compensation Appeals Board, Michael Eakins, dba Balloons by the Sea, Jacinto Rodriguez and Michael Eakins dba Monterey Bay Aero Sportsplex (Douglas Spencer). 4 WCAB Rptr. 10,251

EMPLOYMENT STATUS– Status as a seaman– The essential requirements for seaman status are: (1) an employee's duties must contribute to the funcition of the vessel or to the accomplishment of its mission, and (2) a seaman must have a connection to a vessel in navigation or to an identifiable group of vessels that is substantial in terms of both its duration and its nature. (See Chandris, Inc. v. Latsis (1995) 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314.) Melvin Spears v. Kajima Engineering & Construction, Inc. 4 WCAB Rptr. 10,259

EMPLOYMENT STATUS– Vessel in navigation– A worker becomes a seaman not by reason of the physical characteristics of the structure to which he is attached, but because its being operational 'in navigation' exposes him to 'a seaman's hazards.' (See DiGiovanni v. Taylor Brothers, Inc. (1st Cir. 1992) 959 F.2d 1119 (en banc).) [In this case the barge was not a vessel in navigation because it had not transportation function, its only purpose was as a construction platform and at the time of injury the barge was not in transit or being moved to a new location. (See generally, Gault v. Modern Continental/Roadway Construction Company, Inc. (2002) 100 Cal.App.4th 991, 4 WCAB Rptr. 10,215.) Melvin Spears v. Kajima Engineering & Construction, Inc. 4 WCAB Rptr. 10,259

EMPLOYMENT STATUS– Repairmen exclusion to Longshore and Harbor Workers' Compensation Act– 33 U.S.C. §905 - The LHWCA allows certain qualified employees to sue the vessel as a third party if the employee was injured as a result of the negligence of the vessel. Not all qualified employees may bring this type of negligence action. A person employed to provide shipbuilding, repairing or breaking services may not sue the vessel owner if the owner is that person's employer. The determination of whether the employee was hired to "repair" within the exclusion, if an employee is hired to restore a vessel to safe operating condition, he has been hired to perform 'repairing' within the meaning of the exclusion, but if he is hired to preserve the vessel's current condition he is performing routine maintenance not covered by the exclusion. (See Now v. Associated Painting Services, Inc. (5th Cir. 1989) 863 F.2d 1205.) Melvin Spears v. Kajima Engineering & Construction, Inc. 4 WCAB Rptr. 10,259

EMPLOYMENT STATUS– Labor Code §3357– The principle test to the relationship is whether the person to whom the service is rendered has the right of control the manner and means of accomplishing the results desired. Employment is generally found when the work being done is an intricate part of the regular business of the employer and where the worker does not furnish an independent business or professional service, or has only invested personal service. [In this case the applicant was not just a truck driver but was a business man who purchased trucks which were used in a subhauling business and was compensated on the loads actually delivered and was properly determined to be an independent contractor.] Antonio Hernandez v. Workers' Compensation Appeals Board, Express Intermodal Transport. 4 WCAB Rptr. 10,205

EMPLOYMENT STATUS– An agreement characterizing the relationship as one of "independent contractor" will be ignored if the parties, by their actual conduct, act like employer and employee. (See S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.) The fact that the parties may have mistakenly believed that they were entering into the relationship of principal and independent contractor is not conclusive. (See Grant v. Woods (1977) 71 Cal.App.3d 647.) Requiring individuals to pay their own payroll and income taxes and provide their own workers' compensation insurance is not proof of independent contractor status. (See Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App. 3d 864.) Crystal Holidays, Inc. v. Michael S. Bernick as Director, Unemployment Insurance Appeals Board. 4 WCAB Rptr. 10,148

EMPLOYMENT STATUS– Is a college student injured while enrolled in a cattle breeding course supervised by university professors an employee of the entity conducting the course? Nicole Land v. Workers' Compensation Appeals Board, Cal Poly Foundation. 4 WCAB Rptr. 10,183

EMPLOYMENT STATUS– A college student injured while enrolled in a cattle breeding course supervised by university professors is not an employee of the entity conducting the course because the student's activities were conducted on an educational basis only and the entity did not receive any tangible benefit from the student's services. Nicole Land v. Workers' Compensation Appeals Board, Cal Poly Foundation. 4 WCAB Rptr. 10,119

EMPLOYMENT STATUS– Employee vs. Partner– Strict compliance with legalities is not required to form a partnership. The intention of the parits to carry on as co-owners a business is ultimately the test of partnership. If they associate together and carry on a business, a partnership is normally created. It is immaterial that they do not designate the relationship as a partnership, or do not know they are partners, for the intent may be implied by their acts. [In this case the applicant and her sister were associated in business in an informal partnership. They shared in the income generated by the business and did not take any deductions normally taken with ordinary payroll checks. Rebecca McMillan v. Workers' Compensation Appeals Board (Elizabeth McMillan) 4 WCAB Rptr. 10,014

EMPLOYMENT STATUS– When determining the issue of whether a worker is an employee or an independent contractor, the analysis of the "control-of-work" test must consider the nature of the work and the overall arrangement between the parties. [In this case the applicant was a " visual merchandiser" who arranged window and store displays for Giorgio of Beverly Hills, was properly found to be an independent contractor. She was paid on a per diem basis with no deductions for taxes receiving a 1099 form not a W-2 and was not provided any employment benefits such as medical or dental coverage.] Lori Allen v. Workers' Compensation Appeals Board, Giorgio of Beverly Hills. 3 WCAB Rptr. 10,325

EMPLOYEE– Person employed by the owner or occupant of a residential dwelling– Labor Code §3352(h)– A person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, or use of the dwelling is not considered an employee unless he or she has worked more than 52 hours during the 90 calendar days immediately preceding the date of the injury. A reasonable and rational interpretation of this statutory requirement would include the hours worked on the day the employee sustained the injury. John Carter, Allied Insurance Company v. Workers' Compensation Appeals Board (Don Randy Miller) 3 WCAB Rptr. 10,306

EMPLOYMENT STATUS– The existence of an employment relationship is usually a question of fact, unless the evidence is undisputed and then it is a question of law. (See S.G. Borello & Sons, Inc., v. Department of Industrial Relations (1989) 48 Cal.3d 341.) Augustine Malazani v. Workers' compensation Appeals Board, Ed' Mobil Service. 3 WCAB Rptr. 10,260

EMPLOYMENT STATUS– WORKERS' COMPENSATION BENEFITS FOR RESIDENTIAL EMPLOYEES– Labor Code §3352-In general, the workers' compensation coverage in a home owners' insurance policy applies to any employee employed by the owner of a residential dwelling whose duties are incidental to the ownership, maintenance or use of the dwelling, or whose duties are personal in nature. Such coverage is not applicable when the services of the employee are in connection with the trade, business, profession or occupation of the owner. In addition the coverage is excluded for residential employees who have been employed fewer than 52 hours or earned less than $100.00 during the 90 calendar days immediately preceding the date of the injury. Penny M. Rock v. Workers' Compensation Appeals Board (Gerald Whitehead) 3 WCAB Rptr. 10,204

EMPLOYMENT STATUS– WORKERS' COMPENSATION BENEFITS FOR RESIDENTIAL EMPLOYEES– Labor Code §3352(a) does not exclude an injured worker from workers' compensation protection who is employed by his or her parent, spouse, or child if the employer elects to come under the workers' compensation law by insuring against workers' compensation liability. (See State Farm Fire and Casualty Company v. Workers' Comp. Appeals Bd. (Leonard) (1997) 16 Cal.4th 1187.) Penny M. Rock v. Workers' Compensation Appeals Board (Gerald Whitehead) 3 WCAB Rptr. 10,204

EMPLOYMENT STATUS– The traditional and key test of an employment relationship is whether the principal to whom the service is rendered has the right to control the manner and means of accomplishing the result desired. (See Gonzales v. Workers' Comp. Appeals Bd. (1996) 46 Cal.App.4th 1585.) The Stockton Record v. Workers' Compensation Appeals Board (Louise Gorospe) 3 WCAB Rptr. 10,187

EMPLOYMENT STATUS– Labor Code §3352(b)– Person performing services in return for aid or sustenance only-While Labor Code §§3351 and 3357 create a presumption of employment, Labor Code §3352 specifically excludes from the section 3351 definition of an employee particular classes of employees, including "any person performing services in return for aid or sustenance only, received from any religious, charitable or relief organization. Sergio Posadas v. Workers' Compensation Appeals Board, Union Rescue Mission. 3 WCAB Rptr. 10,155

EMPLOYMENT STATUS– Labor Code §3351– Traditional features of employment contract– In addition to relying on a specific exclusion to rebut the presumption of employee status, an alleged employer may seek to prove that the essential contract of hire required, express or implied, is not present under Labor Code §3351. The traditional features of an employment contract are: (1) consent of the parties, (2) consideration for the services rendered, and (3) control by the employer over the employee. [See Barragan v. Workers' Comp. Appeals Bd. (1987) 195 Cal.App. 637.] Sergio Posadas v. Workers' Compensation Appeals Board, Union Rescue Mission. 3 WCAB Rptr. 10,155

EMPLOYMENT– Formation of business entity to employ worker– In this case there was no evidence from which a reasonable inference could be drawn that mother and son intended to associate in a business entity to employ applicant. [No business bank account was opened, no business income tax returns were filed and no written partnership of join venture agreement was signed. (See generally, Morris v. Moran (1960) 179 Cal.App. 3d 463.) Victor Meshkovsky v. Workers' Compensation Appeals Board (Adriano Gaston) 3 WCAB Rptr. 10,108

EMPLOYMENT– The primary test of employment is the right to control over the manner and means of accomplishing a desired result, which can be shown by pervasive or necessary control over meaningful aspects of the business. (See S.G. Borello & Sons v. Dept. of Industrial Relations (1989) 48 Cal. 3d 341.) It is not necessarily the exercise of the right, but the power to act which id determinative. (See Greenway v. Workers' Comp. Appeals Bd. (1969) 269 Cal.App.2d 49.) Jose Alfaro v. Workers Compensation Appeals Board, Meir's Ice Cream. 3 WCAB Rptr. 10,100

EMPLOYMENT STATUS– The burden on proving independent contractor status is specifically on the defendant. See Johnson v. Workers' Comp. Appeals Bd. (1974) 41 Cal.App.3d 318.) [In this case the applicant responded to a newspaper advertisement for a job as a mechanic, was paid in cash and provided tools and after the injury the employer provided medical care and encouraged applicant not to report the injury as work related because he did not have workers' compensation insurance.] Stanley F. Lazar v. Workers' Compensation Appeals Board (Jeffery Collins) 3 WCAB Rptr. 10,141

EMPLOYMENT STATUS– Labor Code §3353– Although the right to control work details and the right to discharge at will are significant considerations, there are a number of secondary indicia of the nature of an employment relationship: (1) whether one is performing services is engaged in a distinct occupational business; (2) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (3) the skill required in the particular occupation; (4) whether the principal or worker supplies the instrumentalities, tools and place of work; (5) the length of time for which the services are to be performed; (6) the method of payment, whether by time or by job; (7) whether no not the work is part of the regular business of the principal; and (8) whether or not the parties believe they are creating the relationship of employer-employee. (See generally, S,G, Bordello and Sons, Inc. v. Department of Industrial Relations (1990) 48 Cal. 3d 341.) County of Los Angeles/Municipal Courts v. Workers' Compensation Appeals Board (Joan A. Hart) 3 WCAB Rptr. 10,087

EMPLOYMENT– Presumption of employee status– Labor Code §3357– The presumption of employee status provided by Labor Code §3357 is rebutted if an express or implied contract of hire is not found. (See Parsons v. Workers' Comp. Appeals Bd. (1981) 126 Cal.App.3d 629.) Joan Mitchell v. Workers Compensation Appeals Voard, Matt Quilan & Associates. 3 WCAB Rptr. 10,060

EMPLOYMENT– Presumption of employee status– Labor Code §3357– The presumption provided by Labor Code §3357 applies only where there is a denial of employment by the employer in whose service the worker is injured. Joan Mitchell v. Workers Compensation Appeals Voard, Matt Quilan & Associates 3 WCAB Rptr. 10,060

EMPLOYMENT– Determination of independent contractor v. employee status– The principal test of an employment relationship is whether the person to who service is rendered has the right to control the manner and means of accomplishing the result desired. (See S.G. Borello & Sons, Inc. v. Department of Industrial Relations (9189) 48 Cal. 3d 341.) American Pacific Forwarders v. Workers' Compensation Appeals Board (Rogaciano Valdez) 3 WCAB Rptr. 10,041

EMPLOYMENT– Determination of independent contractor vs. employee status– The contract giving an applicant independent contractor status is not necessarily dispositive of the issue. (See Truesdale v. Workers' Comp. Appeals Bd. (1987) 190 Cal.App.3d 608.) American Pacific Forwarders v. Workers' Compensation Appeals Board (Rogaciano Valdez) 3 WCAB Rptr. 10,041

EMPLOYMENT– Residential employee– Labor Code §3352(h)– A person employed by the owner or occupant of a residential dwelling who is employed for less than 53 hours during the 90 calendar days immediately preceding the date of injury is not an employee for purposes of workers' compensation benefits. The hours worked on the day of injury are properly included within the section 3352 calculation, but it is not appropriate to include future hours that may be worked in the calculation of the 52-hour threshold. To meet the 52-hour threshold, the hours must have been actually worked or worked on the day of injury. Edith Farago v. Workers' Compensation Appeals Board, Debi and Elliot Webb 5 WCAB Rptr. 10,261

EMPLOYMENT STATUS–Special employer relationship–An employee may have more than one employer for purposes of workers' compensation, and, in situations of dual employers, the second or special employer may enjoy the same immunity for a common law negligence action on account of an industrial injury as does the first or general employer. (See Santa Cruz Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575.) Deborah E. Lester v. Barbosa Cabinets, Inc. 5 WCAB Rptr. 10,270

EMPLOYMENT STATUS–Special employment relationship–The primary consideration in determining whether a special employment relationship exists is whether the special employer has the right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not, gives rise to the employment relationship. (See Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242.) Deborah E. Lester v. Barbosa Cabinets, Inc. 5 WCAB Rptr. 10,270