WCAB Rejects Claim of Employment at Time of Fatal Car Crash

Modesto,CA ( WorkCompAcademy)  - Alex Romero sustained fatal injuries as a result of a motor vehicle accident in which he was involved on October 26, 2016. It is alleged that, at the time, Romero's attorneys claimed he was driving on an errand intended to benefit the alleged employer, Paul Story dba Kar Tunez.

Paul Story worked out of his home garage in Modesto. He engaged in auto stereo installation as a "side business" since he was 13 years old. Story also rented space at a warehouse on Bitritto Way in Modesto and stored tools there. He testified that Romero stored tools there as well. Prior to October, 2016, he had no employees, but that he "partnered" on projects with Romero.

When business improved, he had people helping out -- which included Romero, Story's wife, Patty, and several other individuals.Story testified that . . . when he did a job with Alex Romero, they would split the proceeds. When they worked together, it was because they wanted to "do something good for ourselves." Alex Romero was "like family" and lived with Paul Story and his family off-and-on for "a few years."

Text messages occurred between Romero and Story referring to Romer's potential assistance to Story occurred two days before the accident On October 24 Story texted that he had "some pepole w anting to see some stufff" and offered to pay Romero "20 or better per person" for his help. Romero replied he was free for "about 2 hours." Romero did not receive a reply so later he texted "Hey you want me to go or no."
The final reply from Story on the topic was "ill take care of it thanks anyway."

On the afternoon before the accident, Story noticed his jigsaw was missing. He assumed Romero had borrowed it. She sent Romero a text "Were the [ ] is m y jigsaw!!!!" but Romero did not reply. The jigsaw was discovered in Romero's trunk after the accident, and Story later retrieved it at the police station.

Thereafter, none of the text messages between applicant and Story reflect any request or expectation that applicant would assist Story in any way. Story had no idea where Romero was going at the time of the accident and could not recall if they spoke before the accident.

Alex Romero's mother, Margaret King testified that on the day he died, Romero was en route to the Kar Tunez shop, and that Romero was never self-employed. In fact, he refused to start up his own business even though she encouraged it. Romero's older brother, Steven testified that his brother was working for Paul Story at the time he died and was not doing any work outside the work he had with Paul Story and Kar Tunez.

Anthony Miranda’s -- an individual with no familial relationship with the Romero family, and at whose direction the speaker project was commenced -- contradicted the testimony of Margaret King and Steven Romero that there was an employment relationship between Alex Romero and Paul Story.

The WCJ found that there is no evidence establishing that applicant’s accident occurred in the course of employment. The WCJ ordered that applicant take nothing on his claim. Reconsideration was denied in the panel decision of Romero v Story & UEBTF - ADJ10821128 (July 2022)

In his Opinion on Decision the WCJ said "No one credibly testified that Story summoned Nieves Romero to the shop. No one credibly testified that Romero was performing a special errand for Story at the time of his death on October 26, 2016. . . . Applicant, represented by Margaret King, had to make a showing of employment. No such showing was made here."

On the credibility issue of the The WCAB panel said the WCJ determined that "Margaret King’s and Steven Romero’s testimony on that subject was not credible. We accord these determinations great weight because the WCJ had the opportunity to observe the witnesses’ testimony at trial and the record is otherwise without evidence of considerable substantiality that would warrant rejecting them."

In terms of proof of an employment relationship the panel said "the applicant bears the burden of proving that he rendered service for the defendant, whereupon the burden shifts to the defendant to rebut the employment presumption." In this case applicant contended the evidence raised this presumption. However the panel went on to say "we concur with the reasoning of the WCJ that the evidence fails to show that applicant was rendering service to Story when he sustained fatal injury."

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