ADJ17533727 — California WCAB decision

What the panel ordered

Petition for reconsideration denied.

Petition for reconsideration of Findings and Order issued on August 22, 2024, denied by WCAB panel on November 18, 2024.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COEDefendant prevailedback

The evidence showed that applicant was under the control and direction of Joe Romano, who paid the wages and owned the property where the injury occurred, and that the special/general employment relationship with Manuel Torres was not established.

From the decision · page 3This matter proceeded to trial on the sole issue of whether the proper employer was Joseph Romano or Manuel Torres.... It is undisputed that the house was a rental property owned by Romano Family Trust. (MOH/SOE, p. 14, lines 41-42.) By building the deck, the applicant was clearly rendering a service for the benefit of Joseph Romano, as owner of the house. Conversely, Manuel Torres did not own the rental property or reap any benefit from the work performed by the applicant.... An employee who is sent by the original employer to render service to another, under the joint control of both, has two employers. The characteristics of general and special employment are: a.) a loaned employee who is sent to perform labor for another; b.) joint participation in the work to the benefit of both the general and special employer; c.) some power, not necessarily complete or exercised, in each employer in the direction and control of the details of the work (Meloy v The Texas Company (1953) 18 CCC 313).

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant was paid by Joe Romano's company, Generator Joe, and Romano determined the rate of pay.

Favours Applicant prevailed

This showed Romano's control over employment and payment, supporting the finding that applicant was Romano's employee.

Applicant and Torres testified credibly that Romano instructed them on tasks, tools, hiring, firing, and owned the property where injury occurred.

Favours Applicant prevailed

This demonstrated Romano's control and benefit from the work, supporting the finding of employment relationship with Romano.

From the decision · page 7Here, on the question of whether Romano has demonstrated that applicant was free from his control and direction in the performance of the work, applicant and Torres testified that Romano (1) would instruct applicant and Torres regarding what tasks needed to be done and when they should be performed; (2) directed Torres as to which tools applicant would use; (3) decided which workers would be hired or fired; and (4) owned the property where applicant was working at the time of injury. (Report, pp. 2-3, 6, 8-9.)

There was no evidence that Torres hired or paid the applicant or that there was joint control by both Romano and Torres.

Favours Defendant prevailed

This negated the existence of a special/general employment relationship with Torres.

From the decision · page 8We next address Romano's argument that applicant was generally employed by Torres. Here, we agree with the WCJ that the record fails to establish the requisite elements of a special/general employment relationship, including that Torres hired applicant on his own behalf or paid applicant's wages. (Report, pp. 7-9.) Accordingly, we discern no merit to Romano's argument that applicant was generally employed by Torres. Lastly, we address Romano's argument that applicant is precluded from pursuing his claim because he failed to appear at previous court proceedings. Here, the sole issue at trial was employment; and, as such, the WCJ issued no findings on the issue of whether applicant's claim may be precluded. (Report, p. 4; F&O) Because there is no final order on the issue of whether applicant's claim may be precluded, we will not address it. (§ 5900(a), 5902, 5903.) Accordingly, we will deny the Petition.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Cal. Const., art. XIV, § 4; Labor Code §§ 3351, 5705(a); S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341

California's no-fault workers' compensation system defines employment broadly to include service to an employer, with a presumption that any person in service to another is an employee.

The Board applied this standard to determine that the applicant was an employee of Romano.

From the decision · page 6II. California has a no-fault workers' compensation system. With few exceptions, all California employers are liable for the compensation provided by the system to employees injured or disabled in the course of and arising out of their employment, "irrespective of the fault of either party." (Cal. Const., art. XIV, § 4.) The protective goal of California's no-fault workers' compensation legislation is manifested "by defining 'employment' broadly in terms of 'service to an employer' and by including a general presumption that any person 'in service to another' is a covered 'employee.'" (Lab. Code, § 3351, 5705(a)2; S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 354 [54 Cal.Comp.Cases 80].)

Meloy v The Texas Company (1953) 18 CCC 313

The characteristics of general and special employment include joint control and benefit, and power in each employer to direct the work details.

The Board found no evidence of a special/general employment relationship between Torres and Romano.

From the decision · page 3This matter proceeded to trial on the sole issue of whether the proper employer was Joseph Romano or Manuel Torres.... It is undisputed that the house was a rental property owned by Romano Family Trust. (MOH/SOE, p. 14, lines 41-42.) By building the deck, the applicant was clearly rendering a service for the benefit of Joseph Romano, as owner of the house. Conversely, Manuel Torres did not own the rental property or reap any benefit from the work performed by the applicant.... An employee who is sent by the original employer to render service to another, under the joint control of both, has two employers. The characteristics of general and special employment are: a.) a loaned employee who is sent to perform labor for another; b.) joint participation in the work to the benefit of both the general and special employer; c.) some power, not necessarily complete or exercised, in each employer in the direction and control of the details of the work (Meloy v The Texas Company (1953) 18 CCC 313).

Kowalski v. Shell Oil Company (1979) 23 Cal.3d 168

The concept of general and special employment requires that the general employer hires and pays wages, and there is joint control over the employee.

The Board found that Torres did not hire or pay the applicant, negating a special/general employment relationship.

From the decision · page 3In Kowalski v. Shell Oil Company (1979) 23 Cal.3d 168, 174-175 [44 Cal.Comp.Cases 134], the California Supreme Court explained the concept of "general" and "special" employment as follows:

ADJ17533727 · November 18, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

What proof carried it

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