University of Vermont AAHS

McCutcheon v. Workers’ Compensation Appeals Board

California Court of Appeals
UNPUBLISHED, 2003 WL 1851510

April 10, 2003

Summary of Opinion

McCutcheon 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.

The 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.

Text of Opinion

Respondent 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."



 McCutcheon 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.


 In 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 employee.

 We 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.)

 We 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.

Considering 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.


 Finally, 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.


 In 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.


 The decision of the Workers' Compensation Appeals Board is affirmed.

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