ADJ10183569 · January 29, 2026

The Appeals Board found the record insufficient to show how the WCJ applied the Borello factors and remanded for further development of the record on employment status.

From the decision · page 2In this case, the record fails to show how, if at all, the WCJ evaluated whether or not defendants retained control over applicant's work and how he "re-weighed" all the secondary factors...... We therefore conclude that the WCJ should develop the record on the issue of whether applicant was employed by defendants at the time of injury. Accordingly, we will rescind the F&O and return the matter for further proceedings consistent with this decision. (Opinion and Decision After Reconsideration, January 28, 2022, pp. 6-9.)

Defendants failed to present new evidence after remand despite encouragement, leaving burden shift results intact.

Favours Applicant prevailed

Lack of new evidence prevented defendants from meeting burden to prove independent contractor status.

From the decision · page 3On reconsideration, the Appeals Board in its most recent Decision found that the Applicant had sustained its burden of proof that he provided services for hire but that defendant had the burden of proof to show that applicant was an independent contractor. The Appeals Board remanded for further evidence on this issue.... After remand, the parties were given the opportunity to develop the record. At a status conference, the undersigned urged both sides to present new evidence. They have not done so. At the trial, the undersigned again urged the parties to present new evidence. They have not done so.

Applicant proved he provided services for defendants, shifting burden to defendants to prove independent contractor status.

Favours Applicant prevailed

This shifted the burden of proof and required further record development on employment status under Borello.

From the decision · page 3In our January 28, 2022 decision, we opined that applicant established that he provided

S. G. Borello & Sons, Inc. v. Dept. of Ind. Relations (1989) 48 Cal.3d 341

Borello test for employment status, focusing on control and secondary factors.

The Appeals Board required further development of the record on application of Borello factors to determine employment status.

From the decision · page 2[T]he record demonstrates that applicant proved that he sustained injury while performing demolition work for defendants and thereby established his prima facie case that he is entitled to employment status. (Report, p. 2.) As a consequence, defendants carry the burden of proving that applicant was an independent contractor at the time of injury.

Applicant testified to working consistently for defendants from June or July 2014 through injury date, with some payment evidence but scant documentary proof.