Opinion
F055279
8-29-2008
PATRICIA RAMIREZ, Petitioner, v. WORKERS COMPENSATION APPEALS BOARD, VLOT BROTHERS CUSTOM HEIFER RAISING et al., Respondents.
Moorad, Clark & Stewart and Adam J. Stewart for Petitioner. No appearance by Respondent Workers Compensation Appeals Board. Law Offices of David A. Leporiere and David A. Leporiere for Respondent Vlot Brothers Custom Heifer Raising. No appearance for Respondent Juan Medina.
Not to be Published
OPINION
THE COURT
Before Ardaiz, P.J., Cornell, J. and Kane, J.
Further statutory references are to the Labor Code unless otherwise stated.
Patricia Ramirez (petitioner) asks this court for a writ of review to inquire into and determine if the Workers Compensation Appeals Board (WCAB) lawfully concluded her husband was not an employee of either Juan Medina or Vlot Brothers Custom Heifer Raising (Vlot Brothers) at the time of his death. (Lab. Code,1 §§ 5950, 5952; Cal. Rules of Court, rule 8.494.) Finding substantial evidence supporting the WCABs determination, we must deny the petition.
BACKGROUND
Juan Medina operated a business named JM & AG Silage Covering, which provided silage services preparing animal feed to approximately five farms including Vlot Brothers in Chowchilla. Petitioners husband, Arturo Bucio Ramirez, worked as an employee for Mr. Medina for about a day in 2002. The next year, the two men decided to enter into a partnership to provide silage services and formalized the arrangement in a notarized agreement on August 7, 2003. The agreement provided they would share costs and profits in JM & AG Silage equally and that Mr. Ramirez would be a partner for the work at all five of the companys current farm accounts as well as additional accounts they hoped to obtain.
A copy of the notarized partnership agreement was not included with the petition for writ of review, but did appear before the WCAB as joint exhibit B.
The same day the parties signed the partnership document, Mr. Medina took Mr. Ramirez to Vlot Brothers to meet the owner and show him the sites where they would be working. After they met a Vlot Brothers foreman, they discovered silage work needed to be performed and decided to take care of it while they were at the farm. Unfortunately, the work led to a fatal accident for Mr. Ramirez, who died several days later.
Petitioner filed a workers compensation claim for decedent benefits. A workers compensation administrative law judge (WCJ) conducted a hearing in November 2007 to determine whether Mr. Ramirez was working for either Vlot Brothers or Mr. Medina doing business as JM & AG Silage Covering. The WCJ concluded "[t]here is no evidence to support that the Applicant was an employee of either company," thereby terminating petitioners right to receive workers compensation benefits. The WCAB denied reconsideration on April 15, 2008, adopting and incorporating the reasoning from the WCJs report and recommendation.
DISCUSSION
Petitioner contends her husband was an employee of either or both Mr. Medina or Vlot Brothers at the time of his accident, placing his death within the coverage of the workers compensation laws. (§ 3600; County of Los Angeles v. Workers Comp. Appeals Bd. (1981) 30 Cal.3d 391, 396 ["An employer-employee relationship must exist in order to bring the Workers Compensation Act into effect"].) Such a determination generally falls within the fact-finding authority of the WCAB:
"Whether the parties have entered into an employment relationship, including the determination of who constitutes the employer, is a question of fact. [Citations.] A person rendering services for another is presumed to be an employee; the alleged employer bears the burden of establishing the lack of an employment relationship. The Board has exclusive jurisdiction to determine whether the presumption has been overcome. [Citations.] The Boards factual findings must be upheld if supported by substantial evidence, even if there are conflicting inferences to be drawn from the evidence, but the court is not bound by the Boards conclusions on questions of law. [Citation.]" (Superior Care Facilities v. Workers Comp. Appeals Bd. (1994) 27 Cal.App.4th 1015, 1022-1023.)
"The findings and conclusions of the appeals board on questions of fact are conclusive and final and are not subject to review." (§ 5953.) Thus, so long as the WCABs findings "`"are supported by inferences which may fairly be drawn from evidence even though the evidence is susceptible of opposing inferences, the reviewing court will not disturb the award."" (Judson Steel Corp. v. Workers Comp. Appeals Bd. (1978) 22 Cal.3d 658, 664.)
A. Partnership Agreement
Petitioner appears to argue that the partnership agreement between her husband and Mr. Medina was either not in place or invalid, and that her husband was an employee of Mr. Medina rather than a partner outside of the ambit of workers compensation coverage. Petitioner points to alleged discrepancies between Mr. Medinas deposition taken on October 20, 2006, and his testimony provided at the workers compensation hearing on November 26, 2007, relating to the events surrounding Mr. Ramirezs accident three to four years earlier on August 7, 2003. Disputing which day the partnership agreement was executed, apparently to discredit Mr. Medina, petitioner alleges:
In her report and recommendation to the WCAB, the WCJ also expressed her uncertainty in discerning petitioners position on reconsideration. Unfortunately, petitioner chose not to clarify the arguments, which have been presented verbatim to this court.
"[In] the deposition, Juan Medina testified that the purported partnership was prepared at approximately 3:00 p.m., on August 7, 2003, the same date Mr. Ramirez was killed! Despite the clear misrepresentations during the trial that is inconsistent with the deposition testimony, the WCJ relied upon Mr. Medinas statement that the partnership agreement was executed the day prior to decedents death!"
Our review of the summary of evidence of the November 26, 2007 hearing, however, indicates the Mr. Medina and Mr. Ramirez agreed to the partnership the day before, but signed the agreement before a notary on the day of Mr. Ramirezs fatal accident. Regardless, any failed recollection of Mr. Medina does not negate the existence of the notarized partnership agreement.
Petitioner also advises this court that Mr. Medinas earlier "deposition was not referenced or reviewed, and there is no indication that the deposition was considered by the WCJ in the Opinion on Decision." Having already responded to that argument in her report and recommendation adopted by the WCAB, the WCJ expressly stated she reviewed both the deposition and trial testimony and found them consistent.
Other than questioning the timing of the partnership agreement and offering mere speculation that Mr. Medina would not likely enter into a partnership agreement given the nature of the work, petitioner offers nothing to refute the uncontradicted evidence relied on by WCAB. Instead, the WCJ found:
"The partnership agreement which was signed by both parties appears to create an equal partnership in the company JM&AG Silage. Both profits and expenses were to be split 50/50 and upon a death of one of the partners, 50% of the value of the company would pass to the spouse of the decedent."
The WCJ also noted, and petitioner does not allege, there was not any evidence the partners affirmatively elected to fall within the workers compensation laws as authorized under section 3351, subdivision (f).
Section 3351, subdivision (f) provides that the term "employee" includes "[a]ll working members of a partnership or limited liability company receiving wages irrespective of profits from the partnership or limited liability company; provided that where the working members of the partnership or limited liability company are general partners or managers, the partnership or limited liability company and the partners or managers shall come under the compensation provisions of this division only by election as provided in subdivision (a) of Section 4151." The election requires either insuring the partnership for workers compensation or filing an election statement with the appropriate authorities at the Department of Industrial Relations. (§ 4151.)
B. Piecework Partnership
Petitioner further contends her husband was an employee of either Mr. Medina or Vlot Brothers pursuant to section 3360, which provides in relevant part:
"Workmen associating themselves under a partnership agreement, the principal purpose of which is the performance of the labor on a particular piece of work are employees of the person having such work executed."
Petitioner suggests that because her husband engaged in a partnership with the principal purpose of performing labor on a particular piece of work, section 3360 requires a finding he was an employee.
Petitioner relies on Guzman v. Workers Comp. Appeals Bd. (1984) 158 Cal.App.3d 190, where the appellate court reversed the WCAB and found two cousins hired for a single job to prune trees at a gas station were employees of the gas station, thereby allowing one of the cousins who had fallen off a ladder to recover workers compensation benefits. However, the Guzman court particularly considered the facts of the partnership itself, concluding that even though the cousins had "on a few previous occasions" joined in piecework jobs, "there was no evidence of an ongoing partnership between" them. (Id. at p. 195.)
Unlike in Guzman, the uncontroverted evidence here reveals Mr. Ramirez entered into a notarized partnership agreement with Mr. Medina to act as equal partners in the business of JM & AG Silage Covering and to perform continued silage services for at least five farm accounts. Moreover, Mr. Medina testified at trial that he hoped the partnership would grow and perform services for additional farms and dairies. Contrary to petitioners belief, the brevity of the partnership arrangement does not demonstrate her husband and Mr. Medina associated themselves for the principal purpose of doing a single job at Vlot Brothers. Under its plain terms, section 3360 does not apply, and petitioner does not otherwise demonstrate any basis to find Mr. Ramirez was acting as an employee of either Mr. Medina or Vlot Brothers at the time of his death.
DISPOSITION
The petition for writ of review is denied. This opinion is final forthwith as to this court.