Cardenas: A Roofer’s Second-Day Injury Required a Closer Look at the Whole Job

A serious injury can happen near the start of a home-repair job. If you are told that you worked too few hours to qualify for workers’ compensation, the agreement for the job may matter as much as the hours already completed.

In Cardenas v. Calvillo, No. ADJ17176604 (WCAB Oct. 24, 2024), a panel required further evidence before deciding whether an injured roofer fell within the residential-worker exclusion. The judge had excluded the worker based on the hours completed before the claimed injury. The Board set that ruling aside so the contracted work, including tasks away from the roof, could be examined.

Two roofs, an $8,800 agreement and conflicting accounts of the time required

The opinion in Cardenas describes an agreement to replace the roofs on the homeowners’ residence and a detached converted garage rented to their daughter. The agreed price was $8,800, and Cardenas was responsible for buying materials. He did not hold a contractor’s license.

He claimed injuries to his left leg and hip from a roof fall on the second day of work in November 2022. The homeowner believed the job would take two or three days. Cardenas testified that he ultimately worked six days at the site, and his son later finished the work.

The trial addressed employment status. The judge found Cardenas excluded because he had worked fewer than 52 hours immediately before the injury. The Board found that the evidence required a more careful analysis of the agreement and the tasks involved.

Employee status and an exclusion from coverage are different questions

The Board first addressed in Cardenas the claim that he was an independent contractor. He had been hired to perform roofing work requiring a license, and the record showed that neither he nor the homeowners held a roofing contractor’s license. Applying Labor Code section 2750.5 to these facts, the Board upheld the finding that the homeowners had failed to establish independent-contractor status.

The next question was the separate residential-worker exclusion. Section 3352(a)(8) applies to workers within the residential-employment category described in section 3351(d). Before invoking that exclusion, the employer must establish the qualifying residential relationship and the facts supporting exclusion.

Here, the panel accepted that the homeowners owned or resided at the premises and that the second dwelling was rented to their daughter rather than to a member of the public. It left that part of the judge’s analysis intact. The dispute that needed further development concerned the contracted hours.

The statute asks about contracted work, not just time completed before an accident

For a specific injury, the residential-employment exclusion in Labor Code section 3352(a)(8) examines the employment during the 90 calendar days immediately before the injury. It covers employment that was, or was contracted to be, for fewer than 52 hours. A separate provision addresses employment that was, or was contracted to be, for wages of $100 or less. These are alternative grounds for exclusion; the agreement must be examined against each one.

The Board explained in Cardenas that the contracted-work language had been added effective in 2017. That change made the parties’ agreement important even when an injury occurred before the worker had completed 52 hours.

The homeowner’s expectation of two or three days was evidence to consider, but it did not establish a shared agreement by itself. The worker’s account and the time spent finishing the job called that estimate into question. The panel found the existing record too vague to resolve the duration of the contracted employment.

The agreed $8,800 price exceeded the amount in the separate wage exclusion. The Board therefore focused on whether the homeowners could establish the hours-based exclusion.

A later Court of Appeal decision explains why the agreement matters

In Padron v. Osoy, No. B333512 (Cal. Ct. App. Apr. 11, 2025, as modified Apr. 29, 2025), the court explained that an ascertainable contracted period controls the hours-based exclusion. If the parties agreed on a period of work, that period is used; if they agreed on no ascertainable period, the actual work determines the hours question. This gives effect to the contracted-work language rather than making coverage depend on when an accident happens.

The difference in the evidence matters. In Padron, the parties’ agreement for 80 to 96 hours was undisputed, and the homeowner had workers’ compensation insurance. The court affirmed judgment for the homeowner because workers’ compensation was the injured worker’s remedy rather than a negligence action against the homeowner. In Cardenas, the expected duration still needed proof. The later court expressly cited Cardenas as a panel decision reaching a consistent interpretation. Together, the decisions show why the actual agreement—not an assumed number of days—needs to be established.

Buying materials and disposing of waste were part of the work

A roof job may involve more than the hours spent on the roof. Cardenas was responsible for purchasing materials and disposing of job-site waste. The Board explained in Cardenas that these assigned tasks were employment duties that had to be counted when evaluating the hours.

That is different from an ordinary commute to and from work. The point was the purpose of the trip: Purchasing supplies and disposing of waste carried out the roofing agreement. A time estimate that ignored those tasks could understate the work the parties had arranged.

For a similar dispute, useful evidence may include the original proposal, messages describing the scope of work, supply receipts, delivery records and the parties’ accounts of who was expected to do each task. Those records can help explain the agreement rather than simply show how long someone remained at the property.

The Board reopened the exclusion question for a supported decision

The panel granted reconsideration in Cardenas, rescinded the July 15, 2024 findings and substituted findings deferring the hours-based exclusion and the remaining issues. It returned the case for further proceedings. The homeowners would need to produce sufficient evidence that the anticipated employment fell below the statutory hours threshold to establish that defense.

The decision’s practical value lies in that sequence: Identify the employment relationship, test the claimed exclusion, determine the scope of the contracted work and include the tasks necessary to perform it. The contracted scope and supporting work records give the judge a basis to decide the exclusion.

Our analysis of Nava addresses a different construction-injury problem: Proving injury-date licensing, insurance and each potential employer’s role. For help with a disputed home-repair injury claim, see our California workers’ compensation practice.