Lara

INTRODUCTION

At issue in this proceeding is whether a gardener, hired twice in the space of 12 months to prune bushes for a diner, was an employee of the diner at the *396 time he sustained injury or an independent contractor exempt from workers’ compensation coverage. Jose Luis Lara (Lara) petitions for writ of review of the decision of the Workers’ Compensation Appeals Board (the Board) against him and in favor of defendant Bratiff Home Corporation, doing business as Metro Diner (Metro Diner), and Scott Broffman as chief executive officer. Viewing the undisputed evidence in light of the relevant factors of employment relationship set forth in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 [ 256 Cal.Rptr. 543 , 769 R2d 399] (Borello), we conclude that the record supports the Board’s finding as a matter of law that Lara was an independent contractor and not an employee. Accordingly, we affirm the decision of the Board.

FACTUAL AND PROCEDURAL BACKGROUND

Lara, a 62-year-old man, suffered injury to his head, lower back, neck, right shoulder, arm, hand, and thumb when he fell from a roof on March 11, 2000, while pruning bushes for the…

I concur in the majority opinion that the petition for reconsideration filed by Bratiff Home Corporation doing business as Metro Diner (Metro), complied with verification of pleadings. I concur with the majority and the Workers’ Compensation Appeals Board (Board) that Jose Luis Lara (Lara) was acting at the behest of Metro and for its benefit and rendered service to it when he was injured on March 11, 2000, and, thus, was presumed to be an employee pursuant to Labor Code section 3357. 1 The only remaining issue before this court is whether respondent Scott Broffman (Broffman), individually or as a substantial shareholder of Metro, sustained his burden of proof that Lara was an independent contractor and, therefore, not entitled to workers’ compensation benefits. I find the court majority misapplied the factors to consider in the analysis of an employer/employee relationship and that Metro did not meet its burden of proof that Lara was an independent contractor. Because this issue is of continuing public interest, I provide a discussion as to the application of factors to consider in light of the legislative intent and public policy of the workers’ compensation laws.

1. Procedural…

At issue in this proceeding is whether a gardener, hired twice in the space of 12 months to prune bushes for a diner, was an employee of the diner at the time he sustained injury or an independent contractor exempt from workers' compensation coverage. Jose Luis Lara (Lara) petitions for writ of review of the decision of the Workers' Compensation Appeals Board (the Board) against him and in favor of defendant Bratiff Home Corporation, doing business as Metro Diner (Metro Diner), and Scott Broffman as chief executive officer. Viewing the undisputed evidence in light of the relevant factors of employment relationship set forth in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 [ 256 Cal.Rptr. 543 , 769 P.2d 399 ] ( Borello ), we conclude that the record supports the Board's finding as a matter of law that Lara was an independent contractor and not an employee. Accordingly, we affirm the decision of the Board.

Lara, a 62-year-old man, suffered injury to his head, lower back, neck, right shoulder, arm, hand, and thumb when he fell from a roof on March 11, 2000, while pruning bushes for the diner. Lara filed a workers' compensation…