is a licensed racehorse trainer. Will
McDaniels was shoeing one of McCutheon’s horses at the track. Since McCutheon’s groom was not available, McDaniels had
his wife, Dory, hold the horse. Will
paid her $10 of his fee for holding. Dory
was a groom at the track but did not work for McCutheon.
The horse spooked at a noise and severely injured Dory.
Workers’ Compensation board awarded benefits to Dory on the theory she was an
employee of McCutcheon at the time of the accident.
In this opinion on appeal, the Court of Appeals agrees with that
decision. McCutheon had seen Dory
hold his horses for her husband and so must have anticipated she would do so if
his groom was unavailable. The fact
that neither she or he viewed her as his employee is a factor, but not
determinative, in deciding whether there was an employee relationship.
Dory McDaniels, a groom, was seriously injured at a racetrack by a racehorse
trained by petitioner James McCutcheon. At the time, Dory was holding the horse
while it was being shod. The Workers' Compensation Appeals Board (WCAB)
determined that Dory was an employee of McCutcheon when she was injured and
awarded her benefits.
McCutcheon petitioned for a writ of review, contending that
Dory was not his employee. We disagree and affirm.
On January 22, 2001, at the Pomona Fairplex Park racetrack,
Dory, a groom, was holding a racehorse while her husband, Will McDaniels, a
farrier, was shoeing the horse for its trainer, McCutcheon. The horse bolted
when startled by a loud noise, severely injuring Dory.
Will regularly shod horses for McCutcheon, a trainer licensed
in California for 35 to 40 years. McCutcheon would pay Will $65 per horse. When
Dory held the horse, Will would give her $10 of the $65. Although McCutcheon was
not present at the time of the injury, in the last 14 years he had seen Dory
many times holding a horse of his while Will shod it. McCutcheon or the groom in
his employ had held horses for Will in the past. But if they were not there,
then, as McCutcheon was well aware, Will would have to get Dory or someone else
at the racetrack to hold the horse because the process requires two people.
The custom and practice at the racetrack allowed only trainers
to sign in workers so as to insure that all workers would be covered by workers'
compensation insurance, which trainers are required to carry. Farriers such as
Will cannot sign in workers. On the date she was injured, Dory had been signed
in by one Nettles, for whom she worked.
The workers' compensation administrative law judge (WCJ)
determined that Dory was McCutcheon's employee: "[Will] as well as [Dory]
was providing a service to [McCutcheon] pursuant to his request, specifically to
shod his horse. This was a routine procedure and many different individuals
would hold the horse while Will ... would shod the horse. [Dory] had done this
very work in the past which was observed by [McCutcheon]. Any person rendering
service for another is presumed to be an employee. Labor Code Section
3357." [FN1] (Unless otherwise
stated, statutory references are to the Labor Code.) The WCAB adopted the WCJ's
reasons and decision after McCutcheon sought reconsideration.
FN1. Labor Code section 3357 provides that "[a]ny
person rendering service for another, other than as an independent contractor,
or unless expressly excluded herein, is presumed to be an employee."
petitioned for writ of review, contending that Dory was not his employee,
notwithstanding section 3357. He begins his argument by faulting the WCAB for
omitting from its decision the language of section 3357 containing two
exceptions: "other than as an independent contractor, or unless expressly
excluded herein." We take this argument to mean that he contends that
section 3357 does not control because one of these two exceptions applies. [FN2]
FN2. McCutcheon lists as one of his contentions that "[t]he
California Horse Racing Board Regulations ... have nothing to do with the issue
of employment." Our Supreme Court has declared that although these
regulations govern horse racing with an aim to protect the public, they cannot
amend the workers' compensation laws and the issue of employment is a judicial
question. (Drillon v. Industrial Accident
Com. (1941) 17 Cal.2d 346, 354‑355.) Accordingly, we look to the
workers' compensation laws and not to these regulations in deciding this case.
discussing the issue of independent contractor, McCutcheon points out that he
never asked Dory to do anything for him nor directed her, never paid her, she
did not consider herself an employee of McCutcheon, and she worked for other
trainers. McCutcheon then concludes his discussion by stating there was no
evidence that he controlled how Will shod horses. The issue before us is not
whether Will is an independent contractor, but whether Dory is McCutcheon's
look for guidance to S.G. Borello &
Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello
). As a threshold matter, "[t]he determination of employee or
independent‑contractor status is one of fact if dependent upon the
resolution of disputed evidence or inferences, and the [Department of Industrial
Relations's Labor Standards Enforcement] Division's decision must be upheld if
substantially supported. [Citation.] ... The [Workers' Compensation] Act must be
liberally construed to extend benefits to persons injured in their employment. (§
3202.) One seeking to avoid liability has the burden of proving that persons
whose service he has retained are independent contractors rather than employees.
(§§ 3357, 5705, subd. (a).)" (Borello,
supra, 48 Cal.3d at p. 349.)
Borello discusses the factors to be used in deciding the presence of an
employment relationship, one of which is the control‑of‑work test.
While recognizing the importance of the control test, the Supreme Court cautions
that this test, "applied rigidly and in isolation, is often of little use
in evaluating the infinite variety of service arrangements." (Borello,
supra, 48 Cal.3d at p. 350.) The court lists the other factors, which are
derived principally from the Restatement Second of Agency: (1) the right to
discharge at will, without cause; (2) whether the one performing services is
engaged in a distinct occupation or business; (3) whether the work is usually
done under the direction of the principal or by a specialist without
supervision; (4) the skill required in the particular occupation; (5) who
provides the tools and the place of work; (6) the length of time for which the
services are to be performed; (7) the method of payment, whether by time or the
job; (8) whether the work is a part of the regular business of the principal;
and (9) whether the parties believe they are creating the relationship of
employer‑employee. (Borello, supra,
48 Cal.3d at pp. 350‑351.)
apply these factors. Regarding control of work, Dory, as a groom, would not
control the work of holding the horse; the farrier would, and undoubtedly
McCutcheon would if he were present. With respect to the remaining nine factors:
(1) McCutcheon could have prevented Dory from holding his horse by providing
Will with a holder, thus "discharging" Dory. (2) Holding a horse is
not a distinct occupation or business, but part of the duties of a groom. (3)
Holding a horse while it is being shod would place the holder under the
supervision of the farrier or the trainer. (4) Not much skill would appear to be
involved in holding a horse. (5) Dory provided neither tools nor the place of
work. (6) The length of the job would not appear to be very long. (7) Dory was
paid by the job. (8) Holding a horse is groom's work and part of the regular
business of McCutcheon, who employed a groom full time. (9) Dory did not
consider herself an employee of McCutcheon.
all of these factors in light of the policies articulated in
Borello, supra, 48 Cal.3d at pages 350‑351, we conclude that Dory was
an employee and not an independent contractor. In performing her
task‑‑holding a horse‑‑she was directed by a specialist,
could be discharged at will, was not engaged in a distinct occupation or
business, did not provide tools or a workplace, and the task required little
skill. Finally, holding horses was a groom's work and part of McCutcheon's
regular business as evidenced by his employing a full‑time groom. While a
few of the Borello factors might cut
the other way, we conclude that most of them support our conclusion that Dory
was an employee and not an independent contractor.
McCutcheon does not offer any argument why Dory might be a person
"expressly excluded" from section 3357. He makes one other
argument that we reject, which requires but brief comment by us. Dory's
California Horse Racing Board license as a groom was expired at the time of her
accident but renewed afterward. Because she was unlicensed, as McCutcheon would
have it, she was not entitled to workers' compensation benefits. The WCJ
rejected this argument, stating, "There is no exclusion of employment in
the Labor Code when an employee fails to have a license at the time of an
injury." McCutcheon cites no authority to the contrary.
sum, McCutcheon has not demonstrated that section 3357 should not control.
McCutcheon, a trainer licensed in California for 35 to 40 years, knew that Will
would have to obtain help at the racetrack to shoe McCutcheon's horse. On many
occasions, McCutcheon had witnessed Dory rendering him a service holding his
horses. The maxim of jurisprudence, "He who takes the benefit must bear the
burden" (Civ.Code, § 3521), highlights why Labor Code section 3357 applies
to the facts before us.
decision of the Workers' Compensation Appeals Board is affirmed.
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