Chavez, Abundio

Applicant Abundio Chavez sought reconsideration of a Findings and Order finding he was not an employee of the homeowner defendant and ordering he take nothing. At a bifurcated trial on employment, the WCJ found applicant not credible and the homeowner credible, concluding under Labor Code section 3352(a)(8)(A) that applicant worked less than 52 hours and was therefore excluded from employee status. The WCJ had excluded the testimony of applicant's alleged co-worker, Jeronimo Bonilla, because he was not listed in the pretrial conference statement under section 5502(d)(3). The Board granted reconsideration, holding that applicant established the employment presumption and that the section 3352 defense was never raised at trial, so applicant was not required to disclose Bonilla as a rebuttal witness and the exclusion was error. The Board rescinded the F&O and returned the matter to the trial level to develop the record on employment and defenses.