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Court of Appeal:
Exception to Exclusive-Remedy Provision Didn’t Apply to Man Who Was on Job for Three Days
Statute Saying That Employment for 52 Hours or More Brings Employee Under Workers Compensation Scheme Is Not Defeated Where Laborer, Despite Expectations, Put in Fewer Hours—Justices
By a MetNews Staff Writer
The Court of Appeal for this district held Friday that a Labor Code section that exempts fleeting employment from the exclusive-remedy provision of the Workers Compensation Act does not apply simply because a worker was injured three days after going to work and did not complete the job he was hired to do.
Justice Gregory Weingart authored the opinion for Div. One. It affirms a summary judgment granted by Los Angeles Superior Court Judge Stephen P. Pfahler in favor of the defendant, Hugo Osoy, who had hired plaintiff Pablo Arredondo Padron to effect home improvements.
At issue is the meaning of Labor Code §3352(a)(8)(A) which provides that workers compensation is not the exclusive remedy where “[t]he employment was, or was contracted to be, for less than 52 hours.”
It was mutually agreed that the employment would be of more than 52 hours duration—roughly 80-96 hours—but it turned out to be for a lesser period in light of Padron having fallen from a ladder, sustaining injuries—which he blamed on Osoy.
Weingard wrote:
“When employment is contracted to be for more than 52 hours, the exclusion in section 3352(a)(8)(A) does not turn on the fortuity of how many hours into that employment a worker is when they are injured. Rather, section 3352(a)(8)(A) excludes from workers’ compensation (1) employment contracted to be for less than 52 hours, and (2) employment for less than 52 hours where no time period was contracted for. Because Padron contracted to do more than 52 hours of work, section 3352(a)(8)(A) does not exclude him from workers’ compensation coverage regardless of his injury occurring in less than 52 hours of work.”
The jurist went on to say:
“Section 3352(a)(8)(A) sets forth two tests—whether ‘[t]he employment was...for less than 52 hours’ and whether ‘[t]he employment...was contracted to be...for less than 52 hours’— related by the word ‘or.’…
“Under Padron’s interpretation, the existence of a contract is trifling because whether a worker is subject to section 3552(a)(8)(A)’s exclusion essentially rises or falls based on whether 52 hours or more of work occurred before injury without consideration of any applicable contract terms. The only time the existence of a contract would make any difference to the applicability of the exclusion distinct from the number of hours worked would be where the following uncommon trifecta hits: the work is contracted to be for less than 52 hours, it ends up taking longer than 52 hours, and the worker is injured after the 52-hour point. In that case, and only in that case, would someone who worked more than 52 hours be excluded from workers’ compensation. But if the two tests overlap to such a significant extent, it is incongruous to relate them with the word ‘or,’ which connotes separate, dissimilar alternatives.”
He said that if Padron’s interpretation were correct, “the statute could just say, ‘The employment was or was contracted to be for less than 52 hours.’ ” Weingard declared:
“We find it more persuasive to construe the two tests in section 3352(a)(8)(A)—‘[t]he employment was...for less than 52 hours’ and ‘[t]he employment...was contracted to be...for less than 52 hours’—as each applying under different, mutually exclusive circumstances. If the employment ‘was contracted to be’ for an ascertainable time period, then the length of the contracted time period determines whether the exclusion applies. If the work was contracted to be for less than 52 hours, the exclusion applies even if the worker takes longer to finish the job. Likewise, if the work was contracted to be more than 52 hours, the exclusion does not apply regardless of whether the injury happens before 52 hours of work have occurred. If the employment was not ‘contracted to be’ for an ascertainable time period, then the length of the actual work determines whether the exclusion applies.”
The case is Padron v. Osoy, 20STCV19456.
Patron was represented on appeal by Santa Clarita attorney Delores Yarnall and Cahuenga Hills lawyer Arash H. Zabetian of Martinian & Associates, Inc. Acting for Osoy were Curt Cutting and Jeffrey Vides of the Burbank appellate law firm of Horvitz & Levy and John K. Paulson and Emily T. Zinn Ford of the Long Beach firm of Walker, Haggerty & Behar.
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