Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3357
Presumption of employment under Labor Code section 3357
The presumption applies to any person rendering service for another unless proven otherwise.
From the decision · page 1Under Labor Code section 3357, "[a]ny person rendering service for another, other than as
an independent contractor, or unless expressly excluded herein, is presumed to be an employee."
(Lab. Code, § 3357, italics added.) "[T]he fact that one is performing work and labor for another
is prima facie evidence of employment and such person is presumed to be a servant in the absence
of evidence to the contrary." (Narayan v. EGL, Inc. (2010) 616 F.3d 895, 900 [75 Cal.Comp.Cases
724].)
Labor Code section 3353
Definition of independent contractor under Labor Code section 3353
An independent contractor renders service for a specified recompense for a specified result, controlled only as to the result, not the means.
From the decision · page 2independent contractor or otherwise excluded from protection under the [Workers'] Compensation
Act." (Johnson v. Workmen's Comp. Appeals Bd. (1974) 41 Cal.App.3d 318, 321
[39 Cal.Comp.Cases 565]; Lab. Code, § 3202.5, 5705(a).) An independent contractor is defined
for the purposes of workers' compensation as "any person who renders service for a specified
recompense for a specified result, under the control of his principal as to the result of his work
only and not as to the means by which such result is accomplished." (Lab. Code, § 3353.) The
question of whether a worker is an employee, or an independent contractor is one of fact. (Estrada
v. Fedex Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 10-11.) Here, the WCJ found
applicant's testimony to be credible, and considering the evidence in the record, defendant has not
met its burden to show that applicant was an independent contractor.
Borello v. Department of Industrial Relations (1989) 48 Cal. 3d 341
Borello factors for determining employment status
The Borello factors provide detailed guidelines for determining employment status in workers' compensation claims.
Dynamex Operations West v. Superior Court (2018) 4 Cal. 5th 903
Borello standard applies over Dynamex for workers' compensation claims
The Dynamex ABC test does not apply to workers' compensation employment status determinations; Borello standard remains controlling.
From the decision · page 9Notwithstanding these simple statements of the law of employment in
workers' compensation, case law has provided a lot more factors to
consider. Of greatest relevance is the state Supreme Court's 1989
decision of Borello, with this decision and later ones summarized in great
detail in the Court's 2018 decision of Dynamex. [Dynamex Operations
W. v. Superior Court (2018) 4 Cal. 5th 903 [83 Cal. Comp. Cases 817].
Although the later decision arguably, significantly changed the law of
employment from Borello, it appears that the former decision still
controls with regard to workers' compensation claims. "Since the
Dynamex Court did not overturn the Borello standard for determining an
applicant's employment status with respect to the requirement of
providing workers' compensation benefits, and expressly limited the
application of the ABC test to the determination of employment status
with regard to wage orders, we conclude that the Borello standard applies
here." Perkins v. Knox (2018) 84 Cal. Comp. Cases 44, 50 (appeals board
panel decision)]