ANITA ZARAGOZA; TRISTAR RISK MANAGEMENT, NICHOLAS RAMOS, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIANICHOLAS RAMOS, Applicant,vs.ANITA ZARAGOZA; TRISTAR RISKMANAGEMENT, Defendant(s).Case No. ADJ4106399 (SAL 0115982)OPINION AND ORDER GRANTING PETITION FOR RECONSIDERATION AND DECISION AFTER RECONSIDERATION Defendant seeks reconsideration of the Findings of Fact issued October 14, 2008, wherein the workers’ compensation administrative law judge (WCJ) found that “Labor Code section 3352(h) does not exclude applicant as an employee as defined in Labor Code section 3351(d) and 3357.” The WCJ further determined that defendant did not meet its burden “to establish the applicant worked less than 52 hours in the 90 days immediately preceding the date of his injury.” Defendant contends that the WCJ erred by finding that applicant was not an excluded employee arguing that a more precise analysis of the homeowner’s testimony indicates that applicant did not work 52 hours in the 90 days preceding the injury and did not meet the earnings requirement. Applicant filed an answer. In the Report and Recommendation on Petition for Reconsideration (Report), the WCJ set forth the bases for the decision. The WCJ also noted a clerical error in Finding of Fact number 1, which omitted reference that defendant has not met its burden to establish that applicant earned less than $100.00. The WCJ recommenided granting defendant’s petition so that the clerical error in the decision could be corrected. Based upon our review of the record, and for the reasons set forth in the WCJ’s Report, which we adopt and incorporate, we will grant reconsideration and affirm the decision except that the clerical error will be corrected pursuant to the WCJ’s recommendation. , For the foregoing reasons, IT IS ORDERED that defendant’s Petition for Reconsideration is GRANTED. IT IS FURTHER ORDERED as the Appeals Board’s Decisi
