Safety and OSHA News

Will widow get death benefits after day laborer killed her husband?

An administrative law judge ruled Juan Cuen Amavizca’s widow should receive workers’ comp death benefits after her husband was killed by a day laborer. Did an appeals court uphold the ALJ’s ruling? 

On Nov. 6, 2016, Amavizca was attacked and killed by a day laborer working with him on a rental property owned by David Cardenas Sr. in Arizona. Amavizca’s widow filed a claim for death benefits. Cardenas requested a hearing before the Industrial Commission of Arizona.

Amavizca’s widow testified her husband regularly worked as a handyman performing plumbing, electrical and remodeling work on rental properties owned by Cardenas and that he also periodically worked for Cardenas’ AB Plumbing company. Amavizca also collected rent and served eviction notices for the properties.

Cardenas testified that, since Amavizca was an undocumented worker, he couldn’t legally hire him. Cardenas said he had a “reciprocal agreement” with Amavizca: Cardenas provided housing and monthly expenses in exchange for work performed by Amavizca.

Neither Cardenas nor AB Plumbing had workers’ comp insurance. Cardenas said AB Plumbing had no employees, just independent contractors. Cardenas says any work Amavizca performed for AB Plumbing was on a contract basis.

The ALJ found Amavizca was employed by both Cardenas and AB Plumbing and said the claim was compensable. Cardenas appealed to a state court.

On appeal, Cardenas conceded Amavizca was an employee of AB Plumbing but denied he was also employed in connection with the rental units or that the assault and resulting death arose out of employment.

In response, Amavizca’s widow said at the time of the assault, her husband was working on one of Cardenas’ rental properties and had also been robbed of rent money he’d collected.

The appeals court found there was enough reasonable evidence to support the finding that Cardenas employed Amavizca in the renovation and rental management of properties.

Cardenas also argued that Amavizca’s death didn’t arise out of employment because there was no evidence the assault was related to work activity.

But the court noted that while installing flooring at Cardenas’ rental property, Amavizca was assaulted and robbed by the day laborer. Cardenas had told Amavizca to hire the day laborer to help with the flooring which was both a risk of Amavizca’s employment and “incidental to the discharge of employment duties.”

The court found there was enough evidence to support the ALJ’s finding that the assault arose out of employment.

Cardenas’ final argument was that Amavizca was a “domestic servant,” therefore he was excluded from being eligible for workers’ comp benefits. Cardenas argued he didn’t operate a rental business and didn’t make any income from his rental properties. The ALJ had also rejected this argument, and the appeals court agreed.

As a result, the Arizona Court of Appeals upheld the ALJ’s decision that Amavizca’s widow should receive death benefits under workers’ comp.

(David F. Cardenas Sr. v. Juan M. Cuen Amavizca (deceased)Arizona Court of Appeals, No. 1 CA-IC 18-0027, 2/7/19)

Print Friendly

Subscribe Today

Get the latest and greatest safety news and insights delivered to your inbox.