Rinaldi v. Workers' Compensation Appeals Board

Opinion

SABRAW, J.

Petitioner Ron Rinaldi (Rinaldi), administrator of the Uninsured Employers Fund, seeks review of an order of the Workers’ Compensation Appeals Board (Board). The Board found that the injured worker, respondent Raymond Curry (applicant), was an employee of respondent Robert Brown (Brown), an unlicensed contractor uninsured for workers’ compensation liability, and not an employee of respondent Wendell Garrett, doing business as Garrett Roofing (Garrett), the licensed contractor who hired Brown. Rinaldi contends that the injured worker was an employee of Garrett as a matter of law because Brown did not have a contractor’s license.

1

Garrett is a licensed contractor who contracted to repair the roof of a homeowner in Daly City. Garrett secured the services of Brown to do the hot tar portion of the job. Brown employed applicant, who sustained bums on November 7, 1984, when a hot tar pot overturned while he was performing services at the job site in Daly City.

After learning that Brown was uninsured for workers’ compensation, applicant filed a claim against Garrett. State Compensation Insurance Fund, Brown, and the Director of the Department of Industrial Relations, as administrator of the Uninsured Employers Fund, were joined as parties. Following a hearing, the workers’ compensation judge found that applicant had sustained industrial injury, but that at the time of the injury he was not an employee of Garrett. The judge made an award in favor of applicant against Brown, who was unlawfully uninsured, of reimbursement for medical-legal costs and ordered that all issues other than employment and injury be deferred. Garrett and its insurer State Compensation Insurance Fund were ordered dismissed as parties.

[573]

Rinaldi, as administrator of the Uninsured Employers Fund, petitioned for reconsideration, alleging that applicant was an employee of Garrett as a matter of law under Labor Code section 2750.5 because Brown did not have a contractor’s license. The Board denied reconsideration, and Rinaldi filed a timely petition for review in this court.

Labor Code section 2750.5 provides: “There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor. Proof of independent contractor status includes satisfactory proof of these factors: . . .”