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Cedillo v. Workers' Compensation Appeals Board2/14/2003
CERTIFIED FOR PUBLICATION
I. Introduction
Jaime Rodriguez was injured on July 10, 1995, while working on the roof of the home of Raul Reyes. Felipe Lauro Cedillo, an illegally unlicensed and uninsured roofing contractor, doing business as Better Roofing, filed a petition seeking review of a decision of the Workers' Compensation Appeals Board ("the board") in favor of Mr. Rodriguez. The board held that Mr. Reyes, the homeowner, was not the employer of Mr. Rodriguez. Rather, the board concluded that Mr. Cedillo, the roofing contractor, was the employer of Mr. Rodriguez. The board directed the Director of Industrial Relations ("the director"), as the administrator for the Uninsured Employers Fund, to pay benefits to Mr. Rodriguez if the unlicensed contractor, Mr. Cedillo, did not. The director, on Mr. Cedillo's behalf, challenges the board's decision. We deny the petition.
II. Background
Mr. Reyes lived across the street from Mr. Cedillo. Mr. Reyes's roof needed repairing. So Mr. Reyes hired Mr. Cedillo to repair the roof. Mr. Cedillo in turn hired Mr. Rodriguez to repair Mr. Reyes's roof. Mr. Rodriguez began working for Mr. Cedillo in June 1995. Mr. Rodriguez worked three to four days a week and was paid $60 per day by Mr. Cedillo for work at different locations. On July 10, 1995, Mr. Rodriguez began working at Mr. Reyes's home. Mr. Rodriguez had worked approximately 14 hours on Mr. Reyes's roof, for $60. On July 10, 1995, Mr. Rodriguez crossed the street to return supplies from Mr. Reyes's residence to Mr. Cedillo's home. While crossing the street, Mr. Rodriguez was struck by a car. A workers' compensation judge concluded as an unlicensed contractor, Mr. Cedillo was not an independent contractor; hence, Mr. Cedillo was an employee of Mr. Reyes; and Mr. Rodriguez was an employee of the homeowner, Mr. Reyes. The practical effort of the workers' compensation judge's ruling was that Mr. Reyes's homeowner's insurance was to pay benefits to Mr. Rodriguez. (State Farm Fire & Casualty Co. v. Workers' Comp. Appeals Bd. (1997) 16 Cal.4th 1187, 1194; Ins. Code, ยง 11590.)
Mr. Reyes and his insurer, Specialty Risk Services ("the insurer"), filed a reconsideration petition challenging the workers' compensation judge's finding that Mr. Rodriguez was an employee of the homeowner. The board granted the reconsideration petition. The board concluded that Mr. Rodriguez was not an employee of Mr. Reyes. The board reasoned Mr. Rodriguez did not spend 52 hours working on Mr. Reyes's roof. Labor Code section 3352, subdivision (h) excludes from coverage as an employee, a person working less than 52 hours for an employer during a specified 90-day period. The board further concluded that Mr. Rodriguez was Mr. Cedillo's employee. The board found that section 2750.5 did not impose liability against Mr. Reyes as the employer based on Mr. Cedillo's unlicensed status. The board held: " s between Cedillo, the alleged contractor, and Reyes, (homeowner), Cedillo would be an employee under Labor Code section 2750.5. However, because Cedillo has no claim against Reyes and does not meet the hour requirement of Labor Code section 3352(h), anymore than the applicant meets the 52 hour requirement, under Division 4, Cedillo cannot be an employee. Therefore, we are not required to revert to the definition of Cedillo, as an employee, as set forth in Labor Code section 2750.5. [ ] Therefore, Cedillo is the employer of applicant." The board directed the director to pay benefits to Mr. Rodriguez if Mr. Cedillo did not provide benefits. On May 6, 2002, the director filed a reconsideration petition before the board. The results of the director's May 6, 2002, petition will be discussed later.
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