Richard Herrera — ADJ12830624

Richard Herrera was injured on January 21, 2019 when scaffolding collapsed while he was working on Michael Paiva's modular home remodel, performing framing, tile work, and plumbing. The WCJ found Herrera was Paiva's employee, and Paiva (through State Farm/Sedgwick) sought reconsideration arguing Herrera was an independent contractor under Labor Code sections 3351 and 3357 and could not be presumed an employee under section 2750.5. Applying the Borello standard, the Board found Paiva retained overall control of the work (present 95% of the time and instructing applicant on how to perform tasks) and that secondary factors—Paiva supplying materials and the place of work, paying hourly, and applicant not being engaged in a distinct business—weighed in favor of employee status. The Board rejected the section 2750.5 presumption issue as moot given the direct finding of employee status, and upheld the WCJ's credibility determination under Garza. The Board affirmed the Findings of Fact.