DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2008 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** THIS DOCUMENT REFLECTS ALL URGENCY LEGISLATION ENACTED THROUGH ***
2007-2008 THIRD EXTRA. SESSION CH. 7 AND CH. 266 OF THE 2008 REGULAR
SESSION APPROVED 8/4/08, AND PROPOSITION 99 APPROVED BY VOTERS 6/3/08
LABOR CODE
Division 4. Workers' Compensation and Insurance
Part 1. Scope and Operation
Chapter 2. Employers, Employees, and Dependents
Article 2. Employees
GO TO CALIFORNIA CODES ARCHIVE DIRECTORY
Cal Lab Code § 3352 (2007)
§ 3352. Persons excluded from definition of employee
"Employee" excludes the following:
(a) Any person defined in subdivision (d) of Section 3351 who is employed by his or her parent, spouse, or child.
(b) Any person performing services in return for aid or sustenance only, received from any religious, charitable, or relief organization.
(c) Any person holding an appointment as deputy clerk or deputy sheriff appointed for his or her own convenience, and who receives no compensation from the county or municipal corporation or from the citizens thereof for his or her services as the deputy. This exclusion is operative only as to employment by the county or municipal corporation and does not deprive any person so deputized from recourse against a private person employing him or her for injury occurring in the course of and arising out of the employment.
(d) Any person performing voluntary services at or for a recreational camp, hut, or lodge operated by a nonprofit organization, exempt from federal income tax under Section 101(6) of the Internal Revenue Code, of which he or she or a member of his or her family is a member and who receives no compensation for those services other than meals, lodging, or transportation.
(e) Any person performing voluntary service as a ski patrolman who receives no compensation for those services other than meals or lodging or the use of ski tow or ski lift facilities.
(f) Any person employed by a ski lift operator to work at a snow ski area who is relieved of and not performing any prescribed duties, while participating in recreational activities on his or her own initiative.
(g) Any person, other than a regular employee, participating in sports or athletics who receives no compensation for the participation other than the use of athletic equipment, uniforms, transportation, travel, meals, lodgings, or other expenses incidental thereto.
(h) Any person defined in subdivision (d) of Section 3351 who was employed by the employer to be held liable for less than 52 hours during the 90 calendar days immediately preceding the date of the injury for injuries, as defined in Section 5411, or during the 90 calendar days immediately preceding the date of the last employment in an occupation exposing the employee to the hazards of the disease or injury for injuries, as defined in Section 5412, or who earned less than one hundred dollars ($100) in wages from the employer during the 90 calendar days immediately preceding the date of the injury for injuries, as defined in Section 5411, or during the 90 calendar days immediately preceding the date of the last employment in an occupation exposing the employee to the hazards of the disease or injury for injuries, as defined in Section 5412.
(i) Any person performing voluntary service for a public agency or a private, nonprofit organization who receives no remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses.
(j) Any person, other than a regular employee, performing officiating services relating to amateur sporting events sponsored by any public agency or private, nonprofit organization, who receives no remuneration for these services other than a stipend for each day of service no greater than the amount established by the Department of Personnel Administration as a per diem expense for employees or officers of the state. The stipend shall be presumed to cover incidental expenses involved in officiating, including, but not limited to, meals, transportation, lodging, rule books and courses, uniforms, and appropriate equipment.
(k) Any student participating as an athlete in amateur sporting events sponsored by any public agency, public or private nonprofit college, university or school, who receives no remuneration for the participation other than the use of athletic equipment, uniforms, transportation, travel, meals, lodgings, scholarships, grants-in-aid, or other expenses incidental thereto.
(l) Any law enforcement officer who is regularly employed by a local or state law enforcement agency in an adjoining state and who is deputized to work under the supervision of a California peace officer pursuant to paragraph (4) of subdivision (a) of Section 832.6 of the Penal Code.
(m) Any law enforcement officer who is regularly employed by the Oregon State Police, the Nevada Department of Motor Vehicles and Public Safety, or the Arizona Department of Public Safety and who is acting as a peace officer in this state pursuant to subdivision (a) of Section 830.32 of the Penal Code.
(n) Any person, other than a regular employee, performing services as a sports official for an entity sponsoring an intercollegiate or interscholastic sports event, or any person performing services as a sports official for a public agency, public entity, or a private nonprofit organization, which public agency, public entity, or private nonprofit organization sponsors an amateur sports event. For purposes of this subdivision, "sports official" includes an umpire, referee, judge, scorekeeper, timekeeper, or other person who is a neutral participant in a sports event.
(o) Any person who is an owner-builder, as defined in subdivision (a) of Section 50692 of the Health and Safety Code, who is participating in a mutual self-help housing program, as defined in Section 50087 of the Health and Safety Code, sponsored by a nonprofit corporation.
HISTORY:
Added Stats 1977 ch 17 § 18, effective March 25, 1977. Amended Stats 1978 ch 239 § 1, effective June 16, 1978, ch 1303 § 1; Stats 1979 ch 76 § 1; Stats 1981 ch 21 § 8, effective April 18, 1981; Stats 1988 ch 1482 § 1; Stats 1989 ch 594 § 2. Amended Stats 1995 ch 725 § 1 (AB 1655); Stats 1996 ch 320 § 30 (AB 2160) (ch 320 prevails), ch 872 § 106 (AB 3472); Stats 1998 ch 931 § 347 (SB 2139), effective September 28, 1998; Stats 2004 ch 83 § 1 (AB 2649).
NOTES:
Editor’s Notes
The reference in subd (d) of this section to Section 101(6) of the Internal Revenue Code is a reference to Section 101(6) of the Internal Revenue Code of 1939. For provisions of the Internal Revenue Code of 1986 similar to former § 101, see 26 USCS § 501.
Former Sections:
Former § 3352, similar to the present section, was enacted 1937, amended Stats 1939 ch 1043 § 1, Stats 1953 ch 513 § 1, Stats 1955 ch 743 § 1, ch 1495 § 1, Stats 1959 ch 505 § 1, Stats 1965 ch 1791 § 1, Stats 1968 ch 1204 § 1, Stats 1970 ch 982 § 1, Stats 1974 ch 966 § 1, Stats 1975 ch 928 § 1, ch 1263 § 5.5, operative January 1, 1977, Stats 1976 ch 1347 § 2, and repealed Stats 1977 ch 17 § 5, effective March 25, 1977.
Amendments:
1978 Amendment (ch 239):
Added subd (i).
1978 Amendment (ch 1303):
Substituted "the employer to be held liable" for "such employer" after "was employed by" in subd (h).
1979 Amendment:
Substituted subd (i) for former subd (i) which read: "(i) Any person performing voluntary service for a private, nonprofit organization and who receives no compensation for such services other than meals or transportation or an allowance or reimbursement for meals and transportation; provided, however, that the organization is exempt from federal income tax under subsection (c) of Section 501 of the Internal Revenue Code, is participating at the time of the volunteer's injury in a program funded and sponsored pursuant to Title II of the Domestic Volunteer Service Act of 1973 (Public Law 93-113; 42 U.S.C. 4951, et seq.-National Older American Volunteer Programs), and has outstanding adequate liability, medical treatment, and disability insurance for its volunteers as required by federal law or regulations."
1981 Amendment:
Added subds (j) and (k).
1988 Amendment:
In addition to making technical changes, (1) added "the following" at the end of the introductory clause; and (2) added subd ( l ).
1989 Amendment:
Added subd (m).
1995 Amendment:
Added subd (n).
1996 Amendment:
Amended subd (j) by (1) substituting "Department of Personnel Administration" for "State Board of Control"; and (2) deleting "pursuant to Section 13920 of the Government Code" after "the state" at the end of the first sentence.
1998 Amendment:
Amended the first sentence of subd (j) by (1) substituting "Department of Personnel Administration" for "State Board of Control"; and (2) deleting "pursuant to Section 13920 of the Government Code" after "the state".
2004 Amendment:
Added subd (o).
Historical Derivation:
(a) Stats 1917 ch 586 § 8, as amended Stats 1931 ch 1021 § 1, Stats 1933 ch 274 § 1, ch 1022 § 1.
(b) Stats 1923 ch 316 § 9, as added Stats 1927 ch 653 § 1.
Note
Stats 1981 ch 21, effective April 8, 1981, provides:
SEC. 12. The Legislature finds and declares that the provisions of law set forth in Sections 8, 9, and 10 of this act, which respectively amend Sections 3352 and 3852 of the Labor Code and add Section 3706.5 to the Labor Code, do not constitute a change in, but are declaratory of, the existing law. These provisions shall apply to all claims filed for injuries occurring prior to the effective date of this act.
Stats 1989 ch 594 provides:
SECTION 1. (a) The Legislature hereby finds and declares as follows:
(1) The presence of traffic accidents, motor vehicle or highway related criminal activities, and other highway safety problems in areas adjacent to the border of this state and each of the adjoining states has created great concern within this state and each of the adjoining states, and the public, governmental agencies, the state legislatures, and other entities interested in public safety.
(2) Emergency incidents, and other public safety problems which require the immediate response of law enforcement resources, are not always confined to a single state.
(3) Commercial development, population growth, recreational use of remote areas, and the highly mobile nature of our society are factors which magnify problems of highway safety and public welfare in border regions of this state and adjoining states.
(4) In a number of locations proximate to the border of this state and each of the adjoining states, and at various times, law enforcement resources from each adjoining state are more accessible and can provide a more expeditious response to a traffic accident or other public safety problem in this state than law enforcement resources in this state.
(5) Some persons evade apprehension for highway-related criminal activities occurring in this state or an adjoining state by using a motor vehicle to cross the state line between this state and an adjoining state.
(6) The Department of the California Highway Patrol, the Oregon State Police, the Nevada Department of Motor Vehicles and Public Safety, and the Arizona Department of Public Safety have not had statutory authority to provide reciprocal interstate law enforcement assistance with respect to emergency incidents, criminal activities, or other public safety problems occurring within the areas adjoining the borders of this state.
(b) It is, therefore, the intent of the Legislature in enacting this act to encourage mutual cooperation between the Department of the California Highway Patrol and the Oregon State Police, the Nevada Department of Motor Vehicles and Public Safety, and the Arizona Department of Public Safety by permitting the Department of the California Highway Patrol to make the most efficient use of its resources in the event of emergency incidents, highway-related criminal activities, or other public safety problems occurring in areas adjacent to the border of this state and each of the adjoining states by enabling the Department of the California Highway Patrol and adjoining state agencies to function on a basis of mutual advantage and thereby provide law enforcement services in a reciprocal manner across state lines that will accord best with geographic, population, and other factors influencing the public safety in areas adjacent to the borders of this state and each of the adjoining states.
Stats 1995 ch 725 provides:
SEC. 3. In enacting this act the Legislature intends to clarify existing law and to resolve disputes between the Employment Development Department and sports officials, officials' associations, schools, school associations, and other organizations sponsoring sports events.
Law Revision Commission Comments:
1998
Section 3352 is amended to reflect elimination of the justice court and of the office of constable. Cal. Const. art. VI, §§ 1, 5(b).
Cross References:
"Employee": Lab C § 3351.
Persons gratuitously performing certain services as employees notwithstanding this section: Lab C §§ 3363.5, 3363.6, 3364, 3364.55.
Exclusion from protection of worker's compensation as affirmative defense: Lab C § 5705.
Collateral References:
2 Witkin Summary (10th ed) Workers' Compensation §§ 170, 172, 183, 187, 190, 191.
5 Witkin Summary (10th ed) Torts § 238.
7 Witkin Summary (10th ed) Constitutional Law § 625.
Cal. Legal Forms, (Matthew Bender) §§ 1C.40[6][d], 1D.90, 1F.118, 13.37[2][c], 38.18, 85.10[1][b], 85.10[3][c][i].
Judicial Council of California Civil Jury Instructions, CACI No. 2800 (Matthew Bender).
Hanna, Cal Emp Inj & Workers' Comp. 2d (Rev) §§ 3.36 [1], 3.36 [2] [a]- [b], 3.36 [3], 3.40, 3.80, 21.04 [1] [a].
Herlick, Cal Workers' Comp. Handbook §§ 2.1, 2.3, 2.4, 2.5, 12.11.
Law Review Articles:
Labor law: Scope of term "employee". 32 Cal LR 289.
Convict and workmen's compensation. 34 Cal LR 167.
Scholarship athletes as college employees. 16 Stan LR 741.
Attorney General’s Opinions:
Liability of county for acts of special deputies appointed by sheriff. 31 Ops. Cal. Atty. Gen. 121.
Annotations:
Workers' compensation: recovery for home service provided by spouse. 67 ALR4th 765.
Jurors as within coverage of workers' compensation acts. 13 ALR5th 444.
Right to workers' compensation for injury suffered at worker's home where home is claimed as "work situs." 4 ALR6th 57
Hierarchy Notes:
Div. 4 Note
Div. 4, Pt. 1, Ch. 2, Art. 2 Note
NOTES OF DECISIONS
Go to 1. Generally 1. GenerallyGo to 2. Particular Determinations-Persons Excluded 2. Particular Determinations-Persons ExcludedGo to 3. Particular Determinations-Persons Included 3. Particular Determinations-Persons IncludedGo to 3.5. Particular Determinations-Employees 3.5. Particular Determinations-EmployeesGo to 4. -Service for Aid or Sustenance 4. -Service for Aid or Sustenance
Go to Topic List 1. Generally
The exclusion from the operation of the Workmen's Compensation Act of casual employees and employees engaged in the types of labor specified in subdivisions (b) and (g) is not violative of Const Art XX § 21 authorizing the legislature to create a liability on the part of all employers to compensate their employees for injuries incurred in the course of their employment, nor does the exclusion render the Act void as special legislation. Western Indem. Co. v. Pillsbury (1915) 170 Cal 686, 151 P 398, 1915 Cal LEXIS 451.
Employment may be dual in character, and insofar as an employee acts in one capacity he may be within the provisions of the Workmen's Compensation Act, while insofar as he works in another capacity his employment may be exempt from the provisions of the Act. Crockett v. Industrial Acci. Com. (1923) 190 Cal 583, 213 P 969, 1923 Cal LEXIS 582.
Whether or not, at the time of his injury, an employee is engaged in an excluded employment is a question of fact to be determined by the Commission, and its finding, if supported by any rational view of the evidence, is beyond review by the courts. Crockett v. Industrial Acci. Com. (1923) 190 Cal 583, 213 P 969, 1923 Cal LEXIS 582.
In determining whether an employment comes within an excepted class under the Workmen's Compensation Act, the question for a court, in reviewing the order of the Commission, is whether the employment is unmistakably excluded by the terms of this statute. Lacoe v. Industrial Acci. Com. (1931) 211 Cal 82, 293 P 669, 1930 Cal LEXIS 307.
The exclusion of certain classes of persons from compensation under the Workmen's Compensation Act does not make the law vulnerable as special legislation, provided that the classification is based on some rational ground of differentiation. Mathews v. Workers' Comp. Appeals Bd. (1972) 6 Cal 3d 719, 100 Cal Rptr 301, 493 P2d 1165, 1972 Cal LEXIS 161.
In determining whether a worker is excluded from compensation coverage under Lab. Code, § 3352, subd. (b) (persons receiving "aid or sustenance only" from religious, charitable, or relief organization), the question is whether services are provided at a minimal level to obtain necessaries of life, or instead are part of a normal employment relationship. Hoppmann v. Workers' Comp. Appeals Bd. (1991, Cal App 6th Dist) 226 Cal App 3d 1119, 277 Cal Rptr 116, 1991 Cal App LEXIS 22.
The compensation provisions of the workers' compensation law are construed liberally in favor of coverage for persons injured in the course of employment (Lab. Code, § 3202). In interpreting the workers' compensation statutes courts do not start with whole cloth, but are directed by Lab. Code, § 3202, to liberally construe the workers' compensation statutes with the purpose of extending their benefits for the protection of persons injured in the course of their employment. This rule provides a means for resolution of ambiguities in the statutes which affect coverage. If there are two reasonable interpretations of an ambiguous statute, one providing for coverage and one not, courts must decide in favor of coverage. State Farm Fire & Casualty Co. v. Workers' Comp. Appeals Bd. (1997) 16 Cal 4th 1187, 69 Cal Rptr 2d 602, 947 P2d 795, 1997 Cal LEXIS 7907.
Ins. Code, § 11590, providing that workers' compensation coverage for any person defined as an employee under Lab. Code, § 3351, subd. (d), is both required and authorized in any policy for comprehensive personal liability, does not incorporate Lab. Code, § 3352, subd. (a), which excludes from the definition of "employee" under the workers' compensation law "[a]ny person defined in subdivision (d) of Section 3351 who is employed by his or her parent, spouse, or child." Thus, the exclusion is not mandatory such that it must be considered a part of any policy for comprehensive personal liability insurance, even if it is not specifically incorporated therein. Ins. Code, § 11590, incorporates by reference only the exclusion under Lab. Code, § 3352, subd. (h) (person who worked less than 52 hours and earned less than $100 during the 90 calendar days preceding injury). State Farm Fire & Casualty Co. v. Workers' Comp. Appeals Bd. (1997) 16 Cal 4th 1187, 69 Cal Rptr 2d 602, 947 P2d 795, 1997 Cal LEXIS 7907.
Under Ins. Code, § 11590, providing that a comprehensive homeowners policy for insurance must provide coverage for workers' compensation benefits for any person employed by the owner of a residential dwelling whose duties are incidental to the maintenance of the dwelling (Lab. Code, § 3351, subd. (d))-unless such person worked less than 52 hours and earned less than $100 during the 90 calendar days preceding injury (Lab. Code, § 3352, subd. (h))-a child, spouse, or parent is covered by workers' compensation. Under Lab. Code, § 4151, which expressly permits the "election" of workers' compensation coverage for, and by, "any person" not defined as an "employee" under the Labor Code, one who purchases a policy for comprehensive personal liability insurance, which necessarily includes such coverage, thereby makes the required "election." Unless the injured person has given written notice of his or her election not to be subject to the workers' compensation law, he or she is deemed a covered employee subject to the workers' compensation law's exclusive remedies. State Farm Fire & Casualty Co. v. Workers' Comp. Appeals Bd. (1997) 16 Cal 4th 1187, 69 Cal Rptr 2d 602, 947 P2d 795, 1997 Cal LEXIS 7907.
Lab C § 3351(d) includes in its definition of an employee persons who are hired to make repairs on a residence. However, Lab C § 3352(h), which applies to unlicensed contractors, excludes from coverage as an employee a licensed or unlicensed worker who works at the residence less than the required 52 hours. Cedillo v. Workers' Comp. Appeals Bd. (2003, Cal App 2d Dist) 106 Cal App 4th 227, 130 Cal Rptr 2d 581, 2003 Cal App LEXIS 223, rehearing denied (2003, Cal App 2d Dist) 2003 Cal App LEXIS 411, review denied (2003, Cal) 2003 Cal LEXIS 3584.
Go to Topic List 2. Particular Determinations-Persons Excluded
A handyman who was injured when he fell off a roof while removing a tree limb was excluded from the protection of the workers' compensation law by the provisions of Lab. Code, §§ 3351, subd. (d) and 3352, subd. (h), where, although the homeowner who hired the handyman rented a portion of her home, it was for supplemental income and was thus not a "business" within the contemplation of the act, and where the handyman had worked for the homeowner less than 52 hours during the 90 calendar days immediately preceding the date of the injury, although he earned more than $100 during that period. Although Lab. Code, § 3351, subd. (d), defines a covered employee to include any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, it makes an exception as provided in Lab. Code, § 3352, subd. (h), for employees who work less than 52 hours during the 90 calendar days immediately preceding the date of the injury, or who earned less than $100 during that period. Because the handyman did not work the number of hours specified, he was excluded from the protection of the act. Stewart v. Workers' Comp. Appeals Bd. (1985, Cal App 1st Dist) 172 Cal App 3d 351, 218 Cal Rptr 245, 1985 Cal App LEXIS 2526.
No constitutional objection exists to the retroactive operation of a civil statute except where a vested right, or the obligation of a contract, is impaired. Thus, in a proceeding by a former football player to recover workers' compensation benefits for injuries received while he was playing football for a university, the Workers' Compensation Appeals Board correctly determined that the applicant was not an employee of the university at the time of his injuries, despite payments to him by the university in the form of grants, loans, and an athletic scholarship, and despite the fact that, at the time of his injuries, case law established that athletes such as he were "employees" for purposes of the workers' compensation law (Lab. Code, §§ 3351, 3352). Subsequent to the judicial holding that an athlete was an employee for such purposes, Lab. Code, § 3352, was amended specifically excluding athletes from the definition of "employee" for such purposes. Since the applicant's right to benefits was wholly statutory, and had not been reduced to final judgment before the amendment of the Labor Code clarifying the employee status of athletes, he did not have a vested right in employee status under the law existing at the time of his injuries. Graczyk v. Workers' Comp. Appeals Bd. (1986, Cal App 2d Dist) 184 Cal App 3d 997, 229 Cal Rptr 494, 1986 Cal App LEXIS 1956, 58 ALR4th 1245.
In an action by a college basketball player against an opposing player from a state college who had injured him during a college basketball game, and against the state and the state college's athletic director and coach, the trial court properly found that the opposing player was not a state employee and thus the injured player could not recover under the doctrine of respondeat superior against the other defendants. Lab. Code, § 3352, subd. (k), excluding from the definition of "employee" those students participating in amateur sporting events sponsored by public or private nonprofit colleges or universities, evidences an intent by the Legislature to prevent the student-athlete from being considered an employee of an educational institution for any purpose that could result in financial liability to the university. Townsend v. State of California (1987, Cal App 2d Dist) 191 Cal App 3d 1530, 237 Cal Rptr 146, 1987 Cal App LEXIS 1745.
In a painter's personal injury action against a homeowner for injuries the painter sustained when he fell from a roof, the trial court erred in finding that the painter, as an unlicensed contractor performing work for which a license was required, was presumed to be the homeowner's employee under Lab. Code, § 2750.5. Given the parties' dispute over how many hours the painter had worked prior to his injury, the trial court should have considered the applicability of Lab. Code, § 3352, subd. (h), which excludes from the definition of employee certain persons working less than 52 hours for, or earning less than $100 from, the employer during the 90 days preceding the injury, since the presumption of employment for unlicensed contractors supplements, rather than overrides, the definitions of employee and independent contractor found in the workers' compensation statutory scheme. Furtado v. Schriefer (1991, Cal App 1st Dist) 228 Cal App 3d 1608, 280 Cal Rptr 16, 1991 Cal App LEXIS 606.
The Workers' Compensation Appeals Board erred in determining that a criminal defendant who was given the opportunity to complete 78 hours of community service in lieu of paying a fine and who was injured while fulfilling the community service option as an groundskeeper on a state university campus was an employee eligible for benefits. He was a person performing voluntary service for a public agency and received no remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses, within the meaning of the exclusion stated in Lab. Code, § 3352, subd. (i). He would only have been entitled to benefits had the university previously adopted the resolution contemplated in Lab. Code, § 3363.5 (designation of person performing voluntary service as employee). Because the undisputed facts negated the presumption of employment, a burden of proof held by the entity for whom the injured individual labored, the burden to produce evidence that such a resolution had been passed was on the party asserting that it had. No such claim was made. California State Univ., Fullerton v. Workers' Comp. Appeals Bd. (1993, Cal App 4th Dist) 16 Cal App 4th 1819, 21 Cal Rptr 2d 50, 1993 Cal App LEXIS 712, overruled Arriaga v. County of Alameda (1995) 9 Cal 4th 1055, 40 Cal Rptr 2d 116, 892 P2d 150, 1995 Cal LEXIS 2180.
A workers' compensation judge erred in awarding benefits to a ski resort's employee who was injured while skiing on the employer's premises during her day off. The employee resided in the resort's converted apartments, and the resort allowed its employees to use the ski lift without charge. However, contrary to the judge's finding, the "bunkhouse rule" did not apply. Lab. Code, § 3352, subd. (f), expressly excludes from the definition of "employee" "any person employed by a ski lift operator to work at a snow ski area who is relieved of and not performing any prescribed duties, while participating in recreational activities on his or her own initiative." There was no dispute that the employee was relieved of and not performing any prescribed duties on the day of her injury, or that she was participating in recreational activities on her own initiative. Although the bunkhouse rule is not referenced in the legislative history of the subdivision, the comments to the applicable bill mention injuries suffered by an off-duty ski resort employee and the intent that such injury would not be compensable in California. Further, the bunkhouse rule was never a rule specific to ski areas, but instead was a rule of general application. Accordingly, although the bunkhouse rule remains viable in other employment situations, Lab. Code, § 3352, subd. (f), precluded recovery under the circumstances of this particular case. Northstar at Tahoe v. Workers' Compensation Appeals Bd. (1996, Cal App 3d Dist) 42 Cal App 4th 1481, 50 Cal Rptr 2d 475, 1996 Cal App LEXIS 185.
In an action for personal injuries against a city brought by an individual injured at a senior center when a coffee pot fell from a serving shelf and spilled hot coffee on her, the trial court properly granted summary judgment for the city. Although Gov C § 815.2 provides that a public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment, the unpaid volunteer who had placed the coffee pot on the shelf was neither an employee nor servant for respondeat superior liability purposes. Under the volunteer exclusion of Lab C § 3352(i), unpaid volunteers of public agencies are excluded from the definition of employee for workers' compensation purposes. Applying the volunteer exclusion and the public policy represented thereby, the unpaid volunteer was neither an employee nor servant of the city as a matter of law. Munoz v. City of Palmdale (1999, Cal App 2d Dist) 75 Cal App 4th 367, 89 Cal Rptr 2d 229, 1999 Cal App LEXIS 886, review denied (1999, Cal) 1999 Cal LEXIS 8707.
An African-American female student's cause of action for race discrimination against her university and its women's basketball coach was barred as a matter of law because plaintiff was a student athlete and not a school employee. Shephard v. Loyola Marymount Univ. (2002, Cal App 2d Dist) 102 Cal App 4th 837, 125 Cal Rptr 2d 829, 2002 Cal App LEXIS 4737.
Worker was excluded from workers' compensation coverage where he worked less than 52 hours at a homeowner's residence; Lab C § 2750.5 did not preclude the finding that the unlicensed contractor who hired the worker was an employer. Because the worker was excluded under Lab C § 3352(h), the contractor was potentially liable to his employee for the injuries sustained. Cedillo v. Workers' Comp. Appeals Bd. (2003, Cal App 2d Dist) 106 Cal App 4th 227, 130 Cal Rptr 2d 581, 2003 Cal App LEXIS 223, rehearing denied (2003, Cal App 2d Dist) 2003 Cal App LEXIS 411, review denied (2003, Cal) 2003 Cal LEXIS 3584.
In a negligence case arising from a snowboarding injury, the trial court erred by rejecting the ski resort owner's proposed instructions on assumption of risk; the injury victim, an employee of the resort who was exempt under Lab C § 3352(f) from workers' compensation coverage while participating in recreational activities, was not also exempt from assumption of risk under Lab C § 2801. Vine v. Bear Valley Ski Co. (2004, Cal App 1st Dist) 118 Cal App 4th 577, 13 Cal Rptr 3d 370, 2004 Cal App LEXIS 713, rehearing denied (2004, Cal App 1st Dist) 2004 Cal App LEXIS 1123, review denied (2004, Cal) 2004 Cal LEXIS 8109.
Because a worker hired to trim trees on defendants' property worked less than 52 hours for defendants during the 90 calendar days immediately preceding his death, the worker was excluded from workers compensation. Thus, defendants could be liable in tort for the worker's death. Ramirez v. Nelson (2006, Cal App 2d Dist) 138 Cal App 4th 890, 42 Cal Rptr 3d 86, 2006 Cal App LEXIS 543, review gr, depublished (2006) 47 Cal. Rptr. 3d 777, 141 P.3d 133, 2006 Cal. LEXIS 8769, 2006 Cal. Daily Op. Service 6569, 2006 D.A.R. 9469.
Go to Topic List 3. Particular Determinations-Persons Included
A citizen commandeered by the county sheriff, who is organizing a party of officers within the scope of his authority, is not appointed for his own convenience and thus not excluded from the term "employee". County of Monterey v. Industrial Acci. Com. (1926) 199 Cal 221, 248 P 912, 1926 Cal LEXIS 262, 47 ALR 359.
A provider of domestic services under the In-Home Supportive Services Program (IHSS) (Welf. & Inst. Code, § 12300 et seq.) was entitled to workers' compensation benefits under Lab. Code, § 3351 (defining covered "employees" ), for an injury sustained while helping an IHSS recipient out of a car, even though she did not exceed the minimum wages and hours of work required for coverage (Lab. Code, § 3352, subd. (h)), in her employment with the recipient. Although Lab. Code, § 3351.5, subd. (b), states that an IHSS worker is "an employee of the recipient," she is also an employee of the state, since the IHSS scheme of engagement of individuals by the state, through counties as agents, to perform IHSS services establishes an employment relationship. The limitations of Lab. Code, § 3352, apply only when the IHSS employment with the recipient is within the householder relationship defined in Lab. Code, § 3351, subd. (d). In-Home Supportive Services v. Workers' Comp. Appeals Bd. (1984, Cal App 3d Dist) 152 Cal App 3d 720, 199 Cal Rptr 697, 1984 Cal App LEXIS 1701.
The Workers' Compensation Appeals Board erred in concluding that a laborer who fell off a church roof while working on a church renovation project at $5 an hour was excluded from compensation coverage as a person receiving "aid or sustenance only" from a religious, charitable, or relief organization under Lab. Code, § 3352, subd. (b), even though at the time the laborer came to the church looking for work he was indigent. The statute's application did not depend on whether the laborer received cash payments or payment in kind such as meals or lodging; rather, the critical test is whether the services were rendered for charitable reasons for aid and sustenance, or for wages. Further, the existence of an employment relationship depends on the factual nature of the relationship and not on the public or private status of the employer or any considerations of a "chilling effect" that may occur if coverage is found. The laborer was working to provide for his necessities of life the same as do most workers. He was not acting as a voluntary donator of services, nor was he working for monies measured by his strict needs. Whatever the laborer or church may have believed about his status was irrelevant. Hoppmann v. Workers' Comp. Appeals Bd. (1991, Cal App 6th Dist) 226 Cal App 3d 1119, 277 Cal Rptr 116, 1991 Cal App LEXIS 22.
An individual, who was assigned by the county sheriff's department through the department's weekender program to work for the State Department of Transportation as part of her sentence to work off a four-year-old speeding ticket, and who, while cleaning the walls of a ventilation duct was allegedly exposed to toxic fumes, was an employee, and not a volunteer within the meaning of Lab. Code, § 3352, subd. (i), which provides that "employee" does not include a person performing voluntary work without remuneration for a public agency or a private, nonprofit organization. Thus, her complaint against the county and state for negligence was subject to dismissal on the ground that workers' compensation provided her exclusive remedy. The term "voluntary" at a minimum means an exercise of will. A person who works in order to comply with a court order to pay a fine or work is not acting free of compulsion, and therefore is not performing voluntary service within the meaning of the statute. In exchange for her work, plaintiff received credit against the court-imposed fine. She thus received remuneration sufficient to render the statute inapplicable. Further, in this context it was not relevant whether plaintiff consented to an employer-employee relationship. (Disapproving to the extent it holds to the contrary: California State Univ., FullertonCalifornia State Univ., Fullerton v. Workers' Comp. Appeals Bd.Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1819 21 Cal Rptr 2d 50, 1993 Cal App LEXIS 712.) Arriaga v. County of Alameda (1995) 9 Cal 4th 1055, 40 Cal Rptr 2d 116, 892 P2d 150, 1995 Cal LEXIS 2180.
The Court of Appeal erred in determining that the son of an individual insured under a comprehensive personal liability policy was not entitled to receive workers' compensation benefits, where the son was injured while employed by the insured on residential property the insured owned, and the son met the minimum hour and wage requirements of Lab. Code, § 3352, subd. (h)). Lab. Code, § 3351, subd. (d), and Lab. Code, § 3352, subd. (h), establish the following mandatory rule: If the owner of a residential dwelling purchases comprehensive personal liability insurance, the policy for insurance must provide coverage for workers' compensation benefits (Ins. Code, § 11590) for any person employed by the owner of a residential dwelling whose duties are incidental to the maintenance of the dwelling (Lab. Code, § 3351, subd. (d)), unless such person worked less than 52 hours and earned less than $100 during the 90 calendar days preceding injury (Lab. Code, § 3352, subd. (h)). The definition of an "employee" under Ins. Code, § 11590, is thus broader than under the general workers' compensation law, which excludes "[a]ny person defined in subdivision (d) of Section 3351 who is employed by his or her parent, spouse, or child" (Lab. Code, § 3352, subd. (a)). State Farm Fire & Casualty Co. v. Workers' Comp. Appeals Bd. (1997) 16 Cal 4th 1187, 69 Cal Rptr 2d 602, 947 P2d 795, 1997 Cal LEXIS 7907.
In a wrongful death action brought against a city by the heirs of a police officer who was killed by an officer employed by the city during a regional special weapons and tactics (SWAT) team exercise, the evidence did not establish as a matter of law that the services the deceased officer was providing at the time of his death were "voluntary services" within the meaning of Lab C § 3352, subd. (i) so that workers' compensation was the exclusive remedy. It was undisputed that the deceased officer was receiving hourly wages in return for his services in the training exercises. Although the evidence disclosed that the officer could, but did not, decline his assignment to this duty by his employer or to the request for his particular role during the training exercises, this did not establish that the officer was a "volunteer." The mere fact that an employee is given the freedom to decline a particular assignment does not mean that, when the employee accepts an assignment and engages in compensated work, he or she is transformed into a volunteer. Brassinga v. City of Mountain View (1998, Cal App 6th Dist) 66 Cal App 4th 195, 77 Cal Rptr 2d 660, 1998 Cal App LEXIS 729.
Go to Topic List 3.5. Particular Determinations-Employees
Trial court erred by granting a property owner's summary judgment motion in an unlicensed roofer's personal injury action that was brought against the owner after the roofer, hired by the owner to replace his roof, fell from the roof and was injured after a few hours on the job, where the roofer's exclusion from workers' compensation coverage under Lab C § 3352(h) did not bar him from suing in tort, and, under Lab C § 2750.5, and applicable case law, the roofer was the owner's employee for purposes of tort liability, given the owner's concession that the roofer was unlicensed. Dismissal of the roofer's case was legally unwarranted because it was premature to require him to come forward with evidence of the owner's negligence to show a triable issue of fact when the owner had not shifted the evidentiary burden pursuant to CCP § 437c(p)(2). Mendoza v. Brodeur (2006, Cal App 1st Dist) 142 Cal App 4th 72, 47 Cal Rptr 3d 310, 2006 Cal App LEXIS 1265.
Although a property manager who hired an unlicensed and uninsured contractor to install rain gutters was an agent of the condominium association under CC § 1363.2(f), its agency status did not entitle it under CC § 2330 to be deemed an owner and exempt employer for purposes of Lab C §§ 3351(d), 3352(h), and the association also was not an exempt owner because the duties of the contractor's injured employee were not personal and were in the trade or business of the association. Heiman v. Workers' Comp. Appeals Bd. (2007, Cal App 2d Dist) 149 Cal App 4th 724, 57 Cal Rptr 3d 56, 2007 Cal App LEXIS 525, modified (2007, Cal App 2d Dist) 2007 Cal App LEXIS 619.
Go to Topic List 4. -Service for Aid or Sustenance
An indigent person who is required to work in order to receive general assistance benefits is entitled to workers' compensation for an injury sustained on the job. Accordingly, a general assistance recipient who was assigned to a county's "workfare" program (which required able-bodied welfare applicants to work in order to earn their monthly benefit checks), and who was injured in the course of his assigned duties as a night watchman for a school district, was an employee within the meaning of the Workers' Compensation Act (Lab. Code, §§ 3200 et seq.) and was thus entitled to benefits. Although there was no contract of employment, the recipient had subjected himself to the control of the county, which in turn received the benefit from his work and exposed him to the same risks of employment faced by similar school employees (the very dangers the workers' compensation laws were intended to cover). Moreover, Lab. Code, § 3352, subd. (b), excluding from the definition of an employee "any person performing services in return for aid or sustenance only, received from any religious, charitable, or relief organization," did not exclude the recipient from the status of an employee. The statute contemplates only private, not public entities. County of Los Angeles v. Workers' Comp. Appeals Bd. (1981) 30 Cal 3d 391, 179 Cal Rptr 214, 637 P2d 681, 1981 Cal LEXIS 198.
Lab. Code, § 3352, which excludes from Workers' Compensation Act coverage persons performing voluntary services for a private, nonprofit organization who receive no remuneration for such services other than meals, transportation, or lodging, is inapplicable to a student medical assistant who was providing services to a hospital as part of an externship program required of her in order to obtain a diploma. Since the program was mandatory, her services were not voluntary. Also, the hospital failed to present any evidence that it was a private, nonprofit organization. Finally, the instruction and training she received by participating in the program was sufficient remuneration to make § 3352 inapplicable. Barragan v. Workers' Comp. Appeals Bd. (1987, Cal App 5th Dist) 195 Cal App 3d 637, 240 Cal Rptr 811, 1987 Cal App LEXIS 2221.
HEADNOTES FROM CALIFORNIA COMPENSATION CASES
Assumption of Risk-Ski Lift Employees:
Court of Appeal held that ski resort employees who were exempt from workers' compensation coverage under Labor Code § 3352(f) were not also exempt from assumption of risk under Labor Code § 2801, when court found that legislature contemplated more restrictive application of "course of employment" in Labor Code § 2801 than in workers' compensation statutes, latter of which included off-duty recreational activities if they were reasonable expectancy of employment. Vine v. Workers' Compensation Appeals Bd., 2004 Cal. Wrk. Comp. LEXIS 221; 118 Cal. App. 4th 577; 13 Cal. Rptr. 3d 370; 69 Cal. Comp. Cases 725 (Cal. App. 1st Dist. 2004) [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 3.82[4].]
Civil Actions-Employment Relationship-Employee Status:
Court of Appeal held trial court improperly applied workers' compensation statute to issue of whether plaintiff was employee of homeowner in plaintiff's civil action against homeowner for premises liability and negligence, when plaintiff was injured on 6/27/2002 while working on concrete project at residence owned by defendant, plaintiff brought civil action against defendant, trial court held plaintiff was not defendant's employer pursuant to exclusion of Labor Code § 3352(h) because he had not worked for defendant for requisite 52 hours, and Court of Appeal found determination of employee status under workers' compensation standards did not apply to civil tort action, and under civil tort liability standards plaintiff was defendant's employee because defendant hired unlicensed contractor to perform work for which license was required and unlicensed contractor in turn hired plaintiff to assist with project. Dunwoodie v. Workers' Compensation Appeals Bd., 2005 Cal. Wrk. Comp. LEXIS 356; 70 Cal. Comp. Cases 1419 (Cal. App. 2nd Dist. 2005) [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 3.07[4], 26.06[9][c].]
Civil Actions-Employment Relationship-Summary Judgment:
Court of Appeal, reversing trial court's dismissal of plaintiff's action following order granting defendant's motion for summary judgment, held that plaintiff was employee of defendant pursuant to Labor Code § 2750.5, which operated to allow plaintiff's tort action, despite fact that plaintiff, by virtue of Labor Code § 3352(h), was not employee of defendant for workers' compensation purposes, when Court of Appeal found that plaintiff was not licensed roofing contractor and was not, therefore, independent contractor, and that in summary judgment proceedings defendant had not shifted evidentiary burden to plaintiff, so that it was premature for trial court to have required plaintiff to come forward with evidence to show triable issue of fact. Mendoza v. Brodeur, 2006 Cal. Wrk. Comp. LEXIS 287; 71 Cal. Comp. Cas 1135; 142 Cal. App. 4th 72 (Cal. App. 1st Dist. 2006). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 3.36[1], [2][a], [b], 3.49[1]-[3], 3.134.]
Employment Relationship:
WCAB found that, alternatively, even if applicant was employee of defendant, his 1/8/98 injury was excluded from coverage under Labor Code § 3352(b) and (i). Posadas v. Workers' Compensation Appeals Bd., 2001 Cal. Wrk. Comp. LEXIS 5016; 66 Cal. Comp. Cases 651 (Cal. App. 2nd Dist. 2001) [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 3.03, 3.04, 3.20, 3.21.]
Employment Relationship-Employers-Homeowner Acting as Licensed Contractor:
WCAB found that homeowner/licensed general contractor who hired unlicensed contractor to build retaining wall on his property was liable for death of laborer hired by unlicensed contractor to assist in work, when decedent, who worked less than 52 hours prior to his death, was not residential employee subject to requirements of Labor Code § 3352(h) because evidence established that homeowner acted as general contractor with regard to work done on property, and WCAB concluded that defendant was ultimate hirer of decedent under Labor Code § 2750. Cohen v. Workers' Compensation Appeals Bd., 2005 Cal. Wrk. Comp. LEXIS 150; 70 Cal. Comp. Cases 893 (Cal. App. 2nd Dist. 2005) [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 3.36, 3.49.]
Employment Relationship-Independent Contractors:
Court of Appeal, reversing trial court and remanding case for further proceedings, held that trial court erred in refusing jury instruction based on Penal Code § 385, which makes it misdemeanor for any person, either personally or through employee, to move tool or equipment within six feet of high voltage overhead line, when it found that decedent tree trimmer (son of plaintiffs in present tort action) was employee of homeowners (defendants in present action) whose tree decedent was trimming when electrocuted by high voltage overhead line, because decedent's employer had no license to trim trees and Labor Code § 2750.5 provides that failure to hold required license deprives contractor (and thus its employees) of independent contractor status, making them employees of their hirer (defendants here), that workers' compensation was not, however, plaintiffs' exclusive remedy because decedent had worked fewer than 52 hours for defendants during preceding 90 calendar days and was thus excluded from workers' compensation pursuant to Labor Code § 3352(h), that statutory violation, in this case of Penal Code § 385, created rebuttable presumption of negligence per se, and that jury instruction based on Penal Code § 385 should have been given because it was supported by substantial evidence, in that jury could reasonably conclude from decedent's electrocution that he moved his saw within six feet of high voltage line. Ramirez v. Workers' Compensation Appeals Bd., 2006 Cal. Wrk. Comp. LEXIS 210; 71 Cal. Comp. Cas 776; 138 Cal. App. 4th 890; 42 Cal. Rptr. 3d 86 (Cal. App. 2d Dist. 2006). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 3.49[3], 3.134.]
Court of Appeal held WCAB properly interpreted interaction between Labor Code §§ 2750.5 and 3352(h) to hold that applicant, who was injured on 7/10/95 while walking from homeowner's residence to return supplies to contractor's home across the street, was employee of unlicensed contractor, not of homeowner who hired contractor, when homeowner hired unlicensed and uninsured roofing contractor to repair roof of homeowner's residence, unlicensed contractor hired applicant to work on that roof in addition to other locations, applicant was not employee of homeowner because he worked for homeowner less than the 52 hours required under Labor Code § 3352(h), and contractor, being unlicensed, could still be considered an employer and liable for injuries to his employees (including applicant) under Labor Code § 2750.5 and Rosas v. Dishong (1998) 67 Cal. App. 4th 815, 822 [79 Cal. Rptr. 2d 339, 63 Cal. Comp. Cases 1376]. Cedillo v. Workers' Compensation Appeals Bd., 2003 Cal. Comp. Cases 140 (Cal. App. 2nd Dist. 2003) [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 3.36[3], 3.49[1], [3], 3.132, 3.133.]
Employment Relationship-Presumptions:
Court of Appeal affirmed trial court's holding that injured worker was not entitled to Labor Code § 3708 presumption that his injury was result of employer's negligence, when Court of Appeal found injured worker was hired by unlicensed contractor on roofing project for hirer/owner, to work on four-unit apartment building, injured worker had 1995 injury from tar at workplace, injured worker brought negligence civil action against unlicensed contractor and owner, owner was owner of "residential dwelling" within meaning of Labor Code § 3351(d), and injured worker was not entitled to Labor Code § 3708 presumption because he did not work 52 hours or more as required under Labor Code § 3352(h). Johnson v. Workers' Compensation Appeals Bd., 2003 Cal. Wrk. Comp. LEXIS 285; 68 Cal. Comp. Cases 601 (Cal. App. 4th Dist. 2003) [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 2.11[1], 3.36[2].]
Employment Relationship-Residential Employees:
Court of Appeal, annulling WCAB decision in Hestehauge v. Charkins (2005) 70 Cal. Comp. Cas 1294 (Appeals Board Significant Panel decision), held that worker injured while painting house was not residential employee of homeowners within Labor Code §§ 3351(d) and 3352(h), which were only relevant statutes for defining "employee" under facts of present case, when Court of Appeal found that Labor Code § 3715(b), relied on by WCAB, was inapplicable to present case, since that statute applied to only uninsured homeowners, whereas homeowners in present case were insured. California State Automobile Association v. Workers' Compensation Appeals Bd., 2006 Cal. Wrk. Comp. LEXIS 96; 71 Cal. Comp. Cas 347 (Cal. App. 1st Dist. 2006). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 2.17, 3.36[1], [2], 3.49[1]-[3].]
WCAB held that applicant was employee of residential property owner on date he was injured in fall from property owner's roof (11/20/2004), when WCAB found (1) property owner was constructing garage/storage unit and applicant's job duties on roof qualified him as residential employee under Labor Code § 3351 because garage storage unit was being built under county abatement order (to abate nuisance from automobiles and other materials on property) and applicant's job duties were thus incidental to ownership of property owner's dwelling, and (2) applicant was not excluded from coverage under Labor Code § 3352(h) because he had worked for homeowner for more than 52 hours and also received more than $100 in wages in 90 calendar days before date of injury. Allstate Insurance Company v. Workers' Compensation Appeals Bd., 2006 Cal. Wrk. Comp. LEXIS 442 (Cal. App. 1st Dist. 2006). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 8.05[1].]
WCAB, in a significant panel decision, held that applicant, injured while painting rooms in defendant homeowners' house, was "employee" and, thus, entitled to pursue workers' compensation claim against defendant, when WCAB found that, although applicant was not "employee" of defendant within terms of Labor Code §§ 3351(d) and 3352(h) because, within 90 days prior to his injury, he had not both worked at least 52 hours for defendant and earned at least $100 from defendant, applicant was nevertheless "employee" of defendant within terms of Labor Code § 3715(b) because latter section applied to all residential employees listed in it, because Legislature's express intent was that residential employees listed in it were covered under Workers' Compensation Act if they would have been covered by law in effect prior to January 1, 1977, and because pre-1977 law covered residential employees if either work being performed was contemplated to last more than 10 days or total labor cost was at least $100, and applicant's work met latter requirement. Hestehauge v. Workers' Compensation Appeals Bd., 2005 Cal. Wrk. Comp. LEXIS 270; 70 Cal. Comp. Cases 1294 [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 2.17, 3.36[1], [2], 3.49[1]-[3], 10.27, 11.02[4][c].]
Court of Appeal affirmed trial court's summary judgment in City's favor when homeowners hired plaintiff handyman/carpenter to perform construction services on project to remodel homeowners' residence, plaintiff fell off roof of residence and was injured, plaintiff brought civil action against City and homeowners on theory that City should have obtained declaration from homeowners about workers' compensation coverage as required under Labor Code § 3800 and if City had done so plaintiff would have been eligible for workers' compensation benefits, and Court of Appeal found, even if City had obtained declaration, plaintiff would have been excluded from workers' compensation coverage under Labor Code §§ 3351 and 3352(h) because he had not worked for homeowners for at least 52 hours in 90 calendar dates before his injury and City's failure to obtain declaration did not result in harm to plaintiff. Nelson v. Workers' Compensation Appeals Bd., 2004 Cal. Wrk. Comp. LEXIS 356; 69 Cal. Comp. Cases 1273 (Cal. App. 4th Dist. 2004) [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 3.36.]
WCAB found that applicant, injured while doing roofing work on unoccupied dwelling owned by defendant, was employee and not excluded from coverage by Labor Code § 3352(h), when credible testimony of applicant and his wife indicated that applicant had worked for defendant for more than 52 hours in 90 days preceding his injury, and WCAB found that documentary evidence produced by defendant to prove applicant began working on date later than he stated was probative but not conclusive proof of date applicant started work. Saxton v. Workers' Compensation Appeals Bd., 2003 Cal. Wrk. Comp. LEXIS 522; 68 Cal. Comp. Cases 1623 (Cal. App. 4th Dist. 2003) [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 3.36.]
Injury AOE/COE-Ski Lift Employees:
WCAB held applicant ski lift attendant sustained injury AOE/COE on 12/1/2002 when he was snow boarding at employer's resort during his lunch break, came upon injured skier, and was injured on way to report skier's injury to ski patrol, when WCAB found applicant's trip began as personal recreation but injury occurred during deviation, at time of deviation applicant was performing implicitly prescribed duty, applicant was not participating in recreational activities at his own initiative, claim was not barred under Labor Code § 3352(f) exclusion of injuries that occurred while employee was "not performing any prescribed duties" or while employee was "participating in recreational activities on his or her own initiative" within meaning of that statute, and all ski resort employees were not automatically excluded employees under that statute. Big Bear Mountain Resorts v. Workers' Compensation Appeals Bd., 2004 Cal. Wrk. Comp. LEXIS 153; 69 Cal. Comp. Cases 602 (Cal. App. 2nd Dist. 2004) [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 3.82[4], 21.04[1].]
Court of Appeal held that reasonable inferences from stipulated facts supported trial court's determination that plaintiff went snowboarding on her own initiative and thus came within exemption from exclusive remedy rule provided by Labor Code § 3352(f), when plaintiff was injured while attending party given by employer for employees at end of ski season. Vine v. Workers' Compensation Appeals Bd., 2004 Cal. Wrk. Comp. LEXIS 221; 118 Cal. App. 4th 577; 13 Cal. Rptr. 3d 370; 69 Cal. Comp. Cases 725 (Cal. App. 1st Dist. 2004) [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 3.82[4], 21.04[1].]
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