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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-AA-0765
JOSE SANCHEZ LOPEZ, PETITIONER,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES (WORKERS’ COMPENSATION), RESPONDENT,
and
CRIS & G PAINTING, LLC, INTERVENOR.
On Petition for Review of a Decision and Order of the District of Columbia Department of Employment Services Compensation Review Board (2022-CRB-000038)
(Submitted October 5, 2023 Decided August 8, 2024)
Carlos A. Espinosa and Ivan M. Waldman were on the brief for petitioner.
Brian L. Schwalb, Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, and Thais-Lyn Trayer, Deputy Solicitor General, filed a Statement in Lieu of Brief in support of respondent.
Harry A. Suissa filed a Statement in Lieu of Brief in support of intervenor. 2
Before BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH and EASTERLY, Associate Judges.
EASTERLY, Associate Judge: To be entitled to compensation under the District
of Columbia Workers’ Compensation Act, D.C. Code §§ 32-1501 to 32-1545, a
claimant must be an “employee,” a term of art under the Act. An “employee” is
statutorily defined to include “every person . . . in the service of another under any
contract of hire or apprenticeship, written or implied, in the District of Columbia,”
but not one “engaged in employment that is casual and not in the usual course of
trade, business, occupation, or profession of the employer.” D.C. Code
§ 32-1501(9)(E). To determine whether an individual is a statutory employee, the
Department of Employment Services (“DOES”) has, with this court’s acquiescence,
employed a “relative nature of the work test” that examines both the nature and
character of the claimant’s work and the relationship of the claimant’s work to the
purported employer’s business. The aim of this test is to discern where best to
allocate the cost of any injury by the putative employee with an eye toward requiring
business owners to internalize costs of on-the-job injuries and to provide a safety net
to workers.
Although we accept the “relative nature of the work” test to determine whether
an individual is an employee or a casual worker (or independent contractor), we
conclude that the Compensation Review Board (“CRB”) did not in this case apply 3
the test correctly, overlooked material facts, and erroneously concluded that
petitioner Jose Sanchez Lopez was not an employee eligible for workers’
compensation benefits. Accordingly, we reverse the denial of Mr. Sanchez Lopez’s
claim for benefits and remand for further proceedings consistent with this opinion.
I. Facts and Procedural History
While performing demolition work for Cris & G Painting at a building on
Connecticut Avenue on June 6, 2020, Mr. Sanchez Lopez fell from the near-top of
an approximately six-foot-tall ladder. As a result of this fall, Mr. Sanchez Lopez
broke his left arm and did not return to work until April 12, 2021. Cristian Sanchez,
the owner of Cris & G Painting, continued for a time to pay wages to
Mr. Sanchez Lopez after the accident—payment that corresponded with the seven
weeks Cris & G Painting was paid by the general contractor, Foundry Construction
(“Foundry”), to do work (totaling $72,131.62) at the Connecticut Avenue site.
Mr. Sanchez Lopez then filed a claim for temporary total disability benefits from
June 7, 2020, to April 12, 2021, and the payment of causally related medical
expenses. Foundry Construction 1 applied for a formal hearing.
At the start of the hearing, Foundry and Cris & G Painting acknowledged that
1 Foundry Construction and its insurer, Erie Insurance, settled with Mr. Sanchez Lopez and were subsequently dismissed as parties to this suit. 4
they were contesting neither the nature and extent of Mr. Sanchez Lopez’s disability
nor the causal connection between his disability and the work-related accident.
Rather, the sole issue they sought to litigate was whether an employer/employee
relationship existed between Mr. Sanchez Lopez and Cris & G Painting or Foundry.
Cristian Sanchez testified to the following: he started his business, Cris & G
Painting, in 2012 and “almost exclusively” worked with Foundry; his company was
“primarily a painting company” but would engage “day[-]labor employees”
“whenever [Foundry] . . . request[ed] . . . demolition work”; “the work of demolition
[wa]s something occasional, maybe a couple of times a year,” that, per an
“agreement” with Foundry, he would hire “day labor employees” to do on a
“week-to-week” or “day-to-day” basis; and, for painting work, Cris & G “ha[d] a
couple of employees that [we]re steady throughout the year” and whom were given
1099 forms for tax purposes. 2
Regarding his employment relationship with Mr. Sanchez Lopez, Cristian
Sanchez testified that he and Mr. Sanchez Lopez had “worked together a few times
for a couple of weeks at a time on different occasions” and on those occasions, he
would generally pick Mr. Sanchez Lopez up at Langley Park Plaza, “where most of
2 This type of form is “commonly referred to as an ‘independent contractor’s tax return.’” Hickey v. Bomers, 28 A.3d 1119, 1124 n.2 (D.C. 2011). 5
the day laborers often h[u]ng out, and . . . look[ed] . . . and wait[ed] for work”;
Mr. Sanchez Lopez “work[ed] with [Cris & G Painting] only during those times that
there was demolition construction, . . . with the exception of perhaps once, where he
worked with [the company] in painting” because there was “lots of work that [they]
had to do”; “whenever there was demolition work available,” Cristian Sanchez
“would call [Mr. Sanchez Lopez], and [Mr. Sanchez Lopez] would always be at the
plaza,” although “sometimes when he was at home [Cristian Sanchez] would swing
by and pick him up”; every day Cristian Sanchez had work for Mr. Sanchez Lopez,
Cristian Sanchez would pick up Mr. Sanchez Lopez and drive him to the job site;
and, on June 2, 2020, Cristian Sanchez hired ten workers, including
Mr. Sanchez Lopez, for a demolition project which was estimated to last two to six
weeks.
Testifying on his own behalf, Mr. Sanchez Lopez stated that he had “done
[demolition] work with [Cris & G Painting] in the past,” and also worked “a few
days as a helper in painting.” For prior jobs, he had worked for Cristian Sanchez for
a $140 daily rate, but he negotiated a $150 rate for the demolition project that he
worked on from June 2 until the date of his injury. According to Mr. Sanchez Lopez,
Cristian Sanchez provided the instructions, tools, and schedule for the June 2020
project. Mr. Sanchez Lopez acknowledged that whenever he was not performing
work for Cristian Sanchez, he “would go to the plaza . . . and . . . wait there to see if 6
someone would come by and provide [him] work for the day.” He acknowledged
that he was free to “accept or reject” demolition jobs whenever Cristian Sanchez
called him. And he testified that Cristian Sanchez had told him “that right after this
[June 2020] work project, that there was another building that [they] would move to,
[an] apartment building that was coming up.”
Adding to this evidentiary picture, counsel for Mr. Sanchez Lopez submitted
exhibits reflecting payments by Cris & G Painting to him or on his behalf. These
exhibits included checks from June and July 2020, totaling $4,450, checks from
January and February 2020 for six weeks of work, totaling $3,620, and receipts for
some of Mr. Sanchez Lopez’s medical expenses.
Following the hearing, the ALJ issued a compensation order denying
Mr. Sanchez Lopez’s claim for temporary total disability benefits. Although the
ALJ credited both witnesses, she determined that Mr. Sanchez Lopez had failed,
under the “relative nature of the work” test, to prove by a preponderance of the
evidence that he was an employee of Cris & G Painting within the meaning of the
Workers’ Compensation Act. 3 Mr. Sanchez Lopez requested review of the ALJ’s
order by the CRB. The CRB affirmed the order, concluding that “[t]he ALJ applied
3 Accordingly, the ALJ also determined that the remaining issues—whether Foundry is a statutory employer and the amount of Mr. Sanchez Lopez’s average weekly wage—were moot. 7
the correct legal standard to the facts of the case” and that her conclusions were
“supported by substantial evidence and consistent with the law.”
Mr. Sanchez Lopez timely filed a petition for review.
II. Analysis
A. Standard of Review
“Our now-familiar standard of review of agency decisions in workers’
compensation cases is governed by the District’s Administrative Procedure Act,
D.C. Code §§ 2–501, –510, et seq. (2001).” Kelly v. D.C. Dep’t. of Emp. Servs., 76
A.3d 948, 954 (D.C. 2013) (internal quotation marks and brackets omitted). We
review the order and decision of the CRB to determine whether it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law.”
Reyes v. D.C. Dep’t of Emp. Servs., 48 A.3d 159, 164 (D.C. 2012). But in so doing,
we “cannot ignore the compensation order which is the subject of the [CRB’s]
review.” Wash. Metro. Area Transit Auth. v. D.C. Dep’t of Emp. Servs., 992 A.2d
1276, 1280 (D.C. 2010). Our principal function is to assure that the DOES “has
given full and reasoned consideration to all material facts and issues,” Coder v. D.C.
Dep’t of Emp. Servs., 284 A.3d 770, 774 (D.C. 2022), within the correct legal
framework, Kelly, 76 A.3d at 954 (explaining that this court must ensure that the
agency’s findings are supported by “substantial evidence on the record as a whole[] 8
and . . . [that its] conclusions flow rationally from those findings and comport with
the applicable law”) (quoting United Parcel Serv. v. D.C. Dep’t of Emp. Servs., 834
A.2d 868, 871 (D.C. 2003)).
B. The Meaning of “Employee” Under the Workers’ Compensation Act
To be entitled to compensation under the District of Columbia’s Workers’
Compensation Act, a claimant must be an “employee.” See D.C. Code § 32-1503(a).
An “employee” is broadly defined under the statute to include “every person . . . in
the service of another under any contract of hire or apprenticeship, written or
implied, in the District of Columbia,” but is then limited by a number of exceptions.
D.C. Code § 32-1501(9). As relevant in this case, the Act excepts from its coverage
“[a]n employee engaged in employment that is casual and not in the usual course of
trade, business, occupation, or profession of the employer.” D.C. Code
§ 32-1501(9)(E).
All states have workers’ compensation statutes, and many have confronted the
issue of defining who is an employee as distinct from a casual laborer or independent
contractor. See 6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation
Law, § 73.01 at 73-1 to 73-2 (2023); 5 id. § 60.02 at 60-4. Most states initially
employed the “right to control” test—a test that arose at common law to determine
when employers should be held liable for the tortious actions of their servants. See 9
5 id., § 60.01 at 60-2 to 60-3. Under this test, the central inquiry was “whether the
putative employer ha[d] a right to control the details of the claimant’s work.”
Munson v. D.C. Dep’t of Emp. Servs., 721 A.2d 623, 625 (D.C. 1998). But over
time, a number of states recognized that the humanitarian and economic
considerations undergirding workers’ compensation statutes, see McCamey v. D.C.
Dep’t of Emp. Servs., 947 A.2d 1191, 1196-97 (D.C. 2008), were not well served by
looking to whether an employer controlled the details of the work. See 5 Larson,
supra, § 60.04[2] at 60-8; id. § 62.01 at 62-2 to 62-4. Consequently, these states
“turned . . . to the ‘relative nature of the work’ test.” 4 Munson, 721 A.2d at 625; see
also 5 Larson, supra, § 60.05[4] at 60-12. Under this test, “an employment
relationship . . . is found” when (1) “the work being done is an integral part of the
regular business of the employer” and (2) “the worker, relative to the employer,
does not furnish an independent business or professional service.” Munson, 721
A.2d at 625; see also Reyes, 48 A.3d at 164-65 (explaining that this test “requires a
4 Larson’s survey of employment tests in the context of workers’ compensation law shows that the shift away from the “right to control” test and toward the “relative nature of the work” test is apparent from either explicit adoption in the case law or by statute, or simply the “implications of the actual fact decisions themselves”—i.e., decisions in which “the control test has been unconsciously jettisoned as the primary consideration.” 5 Larson, supra, § 60.05[4] at 60-12 to 60- 13. Thus, Larson acknowledges “that the right to control the details of the work is” ostensibly still “the primary test” for determining a claimant’s employment status in many states, even as the degree to which the employer’s business relies on the claimant’s work appears to be the operative consideration. 5 id. § 60.03 at 60-5. 10
very fact-specific analysis” which considers both “the nature of the claimant’s work”
and the “relationship between the claimant’s work and the employer’s work,” but
ultimately “focuses on whether the worker is hired to do work in which the company
specializes”).
As indicated, the relative nature of the work test has two parts. The first part
focuses on the “nature and character of the claimant’s work or business” and requires
consideration of three factors: (a) “the degree of skill involved [in the work in
question]”; (b) “the degree to which it is a separate calling or business”; and (c) “the
extent to which it can be expected to carry its own accident burden.” Gross v. D.C.
Dep’t of Emp. Servs., 826 A.2d 393, 396 n.5 (D.C. 2003); see also 5 Larson, supra,
§ 60.05[2] at 60-10. The second part of the test focuses on the relation of the
claimant’s work to the employer’s business and also requires consideration of three
factors: (a) “the extent to which [the] claimant’s work is a regular part of the
employer’s regular work”; (b) “whether [it] is continuous or intermittent”; and
(c) “whether [its] duration is sufficient to amount to the hiring of continuing services,
as distinguished from contracting for the completion of a particular job.” Gross, 826
A.2d at 396 n.5; see also 5 Larson, supra, § 60.05[2] at 60-10. “Although several
factors are considered under . . . the ‘relative nature of the work’ test, no one factor
is dispositive.” Reyes, 48 A.3d at 165. In line with the Workers’ Compensation
Act’s goal of “assured compensation,” Ferreira v. D.C. Dep’t of Emp. Servs. 11
(Workers’ Comp.), 531 A.2d 651, 654 (D.C. 1987), the ultimate aim of the test is to
provide for fair and efficient adjudication of claims.
In Munson, this court identified in a survey of DOES decisions an “uncertainty
as to the appropriate standard to apply to make . . . determinations” of whether or
not claimants are “employees” within the meaning of the Workers’ Compensation
Act—the “right to control” or the “relative nature of the work” test—and remanded
the case for an authoritative interpretation of the statute by DOES. 721 A.2d at
626-28. DOES adopted a “relative nature of the work” test, see Gross, 826 A.2d at
396, and this court has accepted the agency’s use of that test, see id.; see also Reyes,
48 A.3d at 164-65. 5 The issue now before us is whether the DOES ALJ, and by
5 “[W]e have often given deference to the CRB’s reasonable interpretation of the workers’ compensation statute . . . . Recent decisions of this court, however, have raised questions about the extent to which the CRB is entitled to such deference.” Rieger v. D.C. Dep't of Employment Services, 316 A.3d 459, 465 (D.C. 2024). The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2024 WL 3208360 (2024) has added to the uncertainty. See id. at *12 (holding that federal courts reviewing agency action under the APA must “decide legal questions by applying their own judgment,” rather than deferring to an agency’s interpretation of an ambiguous statute). Here, however, neither party has challenged the agency’s use of the “relative nature of the work” test to determine whether a claimant is an “employee” within the meaning of the statute or suggested that DOES should instead be employing the “right to control” or some other test. (Mr. Sanchez Lopez does cite a pre-Munson decision in which the CRB found the claim compensable through application of the “right to control” test, but only to support his argument that his demolition work was integral to Cris & G Painting’s overall business under the “relative nature of the work” test, and he acknowledges that the “right to control test” is not “the appropriate test to determine Employee/Employer relation[s] in the 12
extension the CRB reviewing the ALJ’s ruling, properly employed the “relative
nature of the work” test to Mr. Sanchez Lopez’s case.
C. Whether Mr. Sanchez Lopez Was an “Employee” under the “Relative
Nature of the Work” Test
Addressing the first part of the relative nature of the work test, the DOES ALJ
stated:
[T]here was no testimony regarding any degree of skill that was required to perform the job duties for the demolition project. Additionally, Claimant did not provide any testimony that he performs any separate calling or business other than what he was hired to do (demolition) for Cris & G Painting, LLC. There was no testimony that Claimant’s demolition work was expected to carry its own accident burden.
After concluding that there was “no testimony” upon which it could rely to assess
the first part of the test, the ALJ proceeded to make findings under the second part
of the test and appeared to rely exclusively on those latter findings in concluding
that Mr. Sanchez Lopez was not an employee. See infra. This was error for two
reasons.
District of Columbia.”) Moreover, we think it plainly correct that the “right to control” test, derived from the different context of vicarious liability for tort claims, should not be employed to identify an “employee” under a remedial statute. 13
First, the ALJ’s formulaic recitation and overly literal application of the
factors in one part of a two-part test—without explanation as to how these factors
and their perceived lack of relevant evidence should be weighed in conjunction with
the second part of the test—was an incomplete analysis. The CRB’s pronouncement
in its affirmance of the ALJ’s decision that “[t]he emphasis . . . should be on the
second part of the test” is not reassuring. Although we said in Reyes that the first
part of the “relative nature of the work” test is generally “accorded less weight,” we
made clear that DOES must analyze “both parts of the test” before making the
determination whether an employer/employee relationship exists. Reyes, 48 A.3d at
165.
Second, there was testimony in the record that related to the first part of the
test—the nature and character of the claimant’s work or business—and that
testimony weighed in favor of Mr. Sanchez Lopez. Looking to the first factor under
this part of the test, the degree of skill involved, Mr. Sanchez Lopez testified that he
did demolition work and had helped out with painting work for a daily rate and that
when he was not working for Cristian Sanchez he would try to get other work by
going to the plaza to see if someone would come by and hire him. This testimony,
along with Cristian Sanchez’s testimony that he had “an agreement” with Foundry
that whenever Foundry needed demolition work to be done he “would go get . . .
day[-] labor employees,” compelled an inference that Mr. Sanchez Lopez’s work did 14
not require careful vetting and was unskilled.
As for the second and third factors under the first part of the test, the testimony
from both Mr. Sanchez Lopez and Cristian Sanchez that Mr. Sanchez Lopez was a
day laborer, in conjunction with Mr. Sanchez Lopez’s testimony that, when he did
do work for Cris & G Painting, Cristian Sanchez picked him up and provided the
instructions, tools, and schedule, compelled a finding that Mr. Sanchez Lopez did
not have “a separate calling or business” and weighed in favor of concluding that he
should not have been expected to carry his own accident burden. See Reyes, 48 A.3d
at 168 (“The less skilled and less independent the work is, the more likely the worker
is an employee and not expected to carry his own accident burden. This is so because
skilled or licensed workers who set their own hours and terms can choose what risks
they are willing to take on, and are more likely to be independent contractors . . . .”
(citing 3 Larson, supra, § 60.02 at 60-04 (2011))).
In short, the ALJ’s assessment of the first part of the relative nature of the
work test was neither supported by substantial evidence nor in accordance with the
law and the CRB erred in affirming it.
Turning to the second part of the “relative nature of the work” test, the DOES
ALJ found that: Cris & G Painting, LLC, “primarily performs painting and
plastering . . . , not demolition work” and Mr. Sanchez Lopez’s work “was not a 15
regular part of Cris &G Painting, LLC[’s,] normal job activities”;
Mr. Sanchez Lopez had provided no testimony regarding how often he performs
demolition work but that the project in this case was “expected to last approximately
two weeks”; Mr. Sanchez Lopez “worked for Cris & G Painting, LLC[,] only
sporadically and on an as needed basis” and had worked for Cris & G Painting for
seven weeks in January and February of 2020 and not again until June 2020; and
Mr. Sanchez Lopez “negotiated the amount of money he wanted to be paid.” Based
on these findings, the DOES ALJ concluded that Mr. Sanchez Lopez was an
“intermittent worker for Cris & G Painting, LLC[,] . . . not . . . an employee of
Cris & G Painting, LLC.” The CRB in turn affirmed the determination that
demolition was not “an integral part of Cris [&] G[] Painting’s business” and that
Mr. Sanchez Lopez was only an “intermittent worker” for the company.
First, we question the DOES ALJ’s factual findings about the nature of
Cris & G Painting’s work, which seemed to ignore part of the testimony and all of
the documentary evidence. Cristian Sanchez did testify that the “primary job” of
Cris & G Painting is “painting” while “demolition is something occasional, maybe
a couple times a year.” But he also testified that his company did demolition work
for Foundry whenever Foundry needed it and that he had an agreement with Foundry
to hire day laborers on a “week-to-week basis” or “sometime[s] . . . just day-to-day,”
whereby he would get a certain dollar amount for each laborer he recruited. And 16
Cris & G Painting had the necessary tools to do the demolition work as evidenced
by Mr. Sanchez Lopez’s testimony that Cristian Sanchez gave these tools to him.
Moreover, Mr. Sanchez Lopez’s hearing exhibits reflect that Cris & G Painting
spent a substantial amount of time doing demolition work for Foundry—six weeks
in January and February, all of June, and three weeks in July. In total, Cris & G
Painting paid Mr. Sanchez Lopez $8,070 for these demolition projects. And
Mr. Sanchez Lopez anticipated more work from Cris & G Painting from another
demolition project that was supposed to follow the Connecticut Avenue demolition.
All of this evidence compelled a finding that, although this work may not have been
the “primary” work of Cris & G Painting, it was within the scope of regular services
Cris & G provided to Foundry as its subcontractor. See 6 Larson, supra, § 73.03[1]
at 73-7 (“[N]o matter how brief or sporadic a particular employment may be, it is
within the compensation act if it is part of the employer’s regular business.”).
Second, we question the findings the ALJ made about Mr. Sanchez Lopez’s
relationship with Cris & G Painting. The ALJ found that Mr. Sanchez Lopez had
“previously worked for Cris & G Painting, LLC[,] for 7 weeks in 2020 ending in
February”; he “did not work again for Cris & G Painting, LLC[,] until June of 2020”;
at that point he “was contracted for the completion of a particular job” that was
expected to last approximately two weeks. The DOES ALJ’s finding that the
demolition project “was expected to last approximately two weeks” is not supported 17
by the record. During the hearing, Cristian Sanchez was asked how long the project
was expected to last and he responded that, although projects “can last anywhere
between three, four, up to six weeks,” “this specific project . . . lasted six weeks.”
Counsel for Mr. Sanchez Lopez then asked if Cristian Sanchez had initially
“estimated the work to be about two to six weeks,” but Cristian Sanchez did not
clearly backtrack from his earlier testimony; instead, he responded, “[w]ell, in
reality, the answer is no. . . . It all depends.” Lastly, although the daily work log
submitted by Cris & G Painting ran only from June 2 to June 13, both invoices and
checks from Foundry to Cris & G Painting indicated that the project continued well
into July—i.e., approximately seven weeks. Additionally, the ALJ did not consider
Mr. Sanchez Lopez’s uncontested testimony that Cristian Sanchez told him “that
right after this [Connecticut Avenue] work project, . . . there was another building
that we would move to, [an] apartment building that was coming up.”
Even assuming that the Connecticut Avenue project was expected to and did
last approximately two weeks, the ALJ’s conclusion that Mr. Sanchez Lopez’s
“intermittent,” “as needed” work “reflect[ed]” that he “was contracted for the
completion of a particular job and not as a regular full time or full duty employee”
set the bar too high for establishing “employee” status under the Workers’
Compensation Act. In Reyes, we held that thirty-two weeks of work over 104 weeks
of employment indicated that the alleged employer “did not view Reyes as a one- 18
time independent contractor and suggest[ed] that . . . [his employer] provided
continuous work to Reyes.” Reyes, 48 A.3d at 168-69. We gave no indication that
the facts of Reyes constituted the temporal floor, however; to the contrary, we went
on to explain that because “[t]he length of employment is indicative of whether the
worker’s employment is long-term and . . . necessary to the overall productivity of
the employer[,] . . . ‘very short employments, of a few hours or days, are considered
casual, while duration for several weeks or months is usually in itself enough to
remove a job from [the casual] category.’” Id. at 168 (quoting 4 Larson, supra,
§ 73.02 at 73-3 (2011)).
Although the records of Mr. Sanchez Lopez’s intermittent employment
spanned only six months, all of his projects were more than “a few hours or days,”
and his consistent availability for demolition work as needed—as well as his
uncontested testimony that Cristian Sanchez told him “that right after this [June]
work project, . . . there was another building that we would move to, [an] apartment
building that was coming up,” which the ALJ did not consider—is indicative of a
continuing, not casual, relationship with Cristian Sanchez and Cris & G Painting.
See 6 Larson, supra, § 73.02 at 73-3 (explaining that in assessing whether
employment is only casual, “mere brevity is not conclusive, if there is a reasonable
probability of regular recurrence or continuance for a substantial period”); Reyes, 48
A.3d at 169 nn.6 & 7 (citing non-binding DOES decisions that have found an 19
employment relationship where claimants were laborers hired intermittently for
particular weeks-long projects); see also Morin v. Harrell, 164 P.3d 495, 498 n.11
(Wash. 2007) (en banc) (noting that “‘casual labor’ is limited to work that is
irregular, uncertain or incidental in nature and duration” (internal quotation marks
omitted)); cf. Benavidez v. Sierra Blanca Motors, 959 P.2d 569, 574-75 (N.M. Ct.
App. 1998) (holding that an incarcerated laborer’s employment—forty hours per
week and expected to last a month and a half—was not “irregular, unpredictable,
sporadic, and brief,” i.e., “casual”); Winters v. Payne, 283 A.2d 807, 813 (Md. Ct.
Spec. App. 1971) (“While it is true that the claimant’s employment was for an
indefinite duration and conceivably would have continued for no more than a few
days or weeks, this, alone, does not compel a finding that the employment was
casual,” because employment was “concomitant to and in furtherance of the
employer’s regular . . . business.”). Thus, the ALJ’s determination that
Mr. Sanchez Lopez was an “intermittent” worker rather than an “employee” was not
supported by substantial evidence and did not “flow rationally from [her] factual
findings.” Reyes, 48 A.3d at 169.
The ALJ’s assessment of the second part of the relative nature of the work test
was like the first, unsupported by substantial evidence and not in accordance with
the law and the CRB erred in affirming it. Indeed, “based on our review of the
record, we conclude that the evidence in the record clearly and convincingly 20
supports (not negates) that an employee/employer relationship existed between”
Mr. Sanchez Lopez and Cris & G Painting. See Reyes, 48 A.3d at 165; Apartment
& Off. Bldg. Ass’n of Metro. Wash. v. D.C. Pub. Serv. Comm’n, 129 A.3d 925, 930
(D.C. 2016) (“[R]emand is not required in cases where the agency would doubtless
reach the same result . . . or [where] it is clear what the agency’s decision has to be.”
(internal quotation marks omitted)).
III. Conclusion
For the reasons stated above, we conclude that the CRB erred in affirming the
ALJ’s compensation order that concluded, based on a flawed application of the
“relative nature of the work” test, that Mr. Sanchez Lopez was not an employee
within the meaning of the Workers’ Compensation Act. We thus vacate the CRB’s
decision and remand the case for further proceedings consistent with this opinion.
So ordered.