Geff Stringer v. William Robinson ( 2013 )


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  •                  IN THE SUPREME COURT OF THE STATE OF IDAHO
    Docket No. 40087
    GEFF STRINGER,                                       )
    )   Pocatello, August 2013 Term
    Claimant-Appellant,                             )
    )   2013 Opinion No. 125
    v.                                                   )
    )   Filed: November 27, 2013
    WILLIAM BRYAN ROBINSON, d/b/a                        )
    HIGHMARK CONSTRUCTION, and                           )   Stephen W. Kenyon, Clerk
    RUSSELL G. GRIFFETH, d/b/a TETON                     )
    PHYSICAL THERAPY, P.A., Employer,                    )
    and IDAHO STATE INSURANCE FUND,                      )
    Surety,                                              )
    )
    Defendants-Respondents.
    _____________________________________
    Appeal from the Industrial Commission of the State of Idaho.
    The decision of the Industrial Commission is affirmed. Costs
    on appeal are awarded to Respondent.
    Dennis R. Petersen, Idaho Falls, attorney for Appellant.
    Lauren K. Covert, Idaho Falls, and Steven Fuller, Preston,
    attorneys for Respondent. Steven Fuller argued.
    _______________________
    W. JONES, Justice
    I. NATURE OF THE CASE
    The Idaho Industrial Commission (the Commission) held that a statutory employer,
    Russell Griffeth, was not liable for payments under Idaho’s worker’s compensation law because
    the claimant, Geffary Stringer, fell within the “casual employment” exemption set forth in I.C. §
    72-212(2). Stringer contests the Commission’s application of the “casual employment”
    exemption, arguing statutory employers, unlike direct employers, are not subject to the “casual
    employment” exemption. We disagree and affirm the Commission’s decision.
    II. FACTUAL AND PROCEDURAL BACKGROUND
    Griffeth, a licensed physical therapist, operates a clinic in Idaho Falls. Other than a brief
    job he held as a teenager, he has never been employed in the construction trade. He has received
    1
    no training as a contractor and was never licensed as a contractor. He did, however, act as a
    general contractor in the construction of his two homes in that he organized and supervised
    various subcontractors.
    In early 2009, Griffeth decided to remodel his physical therapy clinic by constructing an
    addition to the existing building. Griffeth had no plans to remodel again in the future. Griffeth
    intended to be the general contractor for the project, but the city required a licensed commercial
    contractor. Consequently, Griffeth hired Bryan Robinson, a friend with construction experience,
    to serve as the general contractor. Robinson obtained a commercial contractor license for the
    project.
    Near the end of the project, Robinson hired Stringer as a carpenter. Stringer installed trim
    on the addition to the clinic and also worked on beam placement in the addition’s ceiling and
    attic. Stringer provided his own tool bag and hand tools while Robinson provided all other
    necessary tools, materials, and equipment. Robinson paid Stringer directly by cash or personal
    check and set Stringer’s hours and wages. In total, Stringer worked on the project for about
    eleven or twelve days. During many of those days, Stringer also worked on other Robinson job
    sites unrelated to the clinic project.
    As the clinic project neared completion, the construction workers used a hoist attached to
    the roof to move heavy beams into position in the attic. Unfortunately, on or near the last day of
    the project, the ceiling collapsed, and a beam fell on Stringer. The impact from the beam
    fractured Stringer’s left ankle. At the time of the accident, Robinson did not have worker’s
    compensation coverage.
    Stringer filed worker’s compensation complaints against both Robinson and Griffeth.
    Following an evidentiary hearing, the Commission held that Robinson was Stringer’s direct
    employer and that Griffeth was his category one statutory employer. 1 Because Robinson did not
    pay worker’s compensation benefits to Stringer, Griffeth, as the statutory employer, normally
    would be liable for such benefits. However, the Commission held that Griffeth was exempt from
    worker’s compensation liability because Stringer’s employment with Griffeth was “casual”
    under I.C. § 72-212(2). Stringer timely appealed to this Court. We affirm.
    1
    There are two categories of statutory employers. A category one statutory employer includes “any person who has
    expressly or impliedly hired or contracted the services of another.” Fuhriman v. Idaho Dep’t of Transp., 
    143 Idaho 800
    , 804–05, 
    153 P.3d 480
    , 484–85 (2007) (quoting I.C. § 72–102(13)(a)). A category two statutory employer “must
    be both the owner or lessee of the premises and the virtual proprietor or operator of the business there carried on.”
    Cordova v. Bonneville Cnty. Joint Sch. Dist. No. 93, 
    144 Idaho 637
    , 641, 
    167 P.3d 774
    , 778 (2007).
    2
    III. ISSUES ON APPEAL
    1.     Is a statutory employer liable for worker’s compensation payments when the claimant’s
    employment falls within the “casual employment” exemption from worker’s
    compensation coverage?
    2.     Is Griffeth exempt from the worker’s compensation insurance requirement because
    Stringer’s employment was “casual”?
    IV. STANDARD OF REVIEW
    This Court will disturb the Commission’s findings of fact only if they are not supported
    by substantial and competent evidence, but we freely review its conclusions of law. See Mazzone
    v. Tex. Roadhouse, Inc., 
    154 Idaho 750
    , 755, 
    302 P.3d 718
    , 723 (2013). We construe exemptions
    within the worker’s compensation scheme narrowly. Stoica v. Pocol, 
    136 Idaho 661
    , 664, 
    39 P.3d 601
    , 604 (2001).
    V. ANALYSIS
    A.     A Statutory Employer Is Not Liable For Worker’s Compensation Benefits If The
    Claimant’s Employment Falls Within The “Casual Employment” Exemption From
    Worker’s Compensation Coverage.
    The concept of a statutory employer is “designed to prevent an employer from avoiding
    liability under the workmen’s compensation statutes by sub-contracting the work to others.”
    Venters v. Sorrento Del., Inc., 
    141 Idaho 245
    , 251, 
    108 P.3d 392
    , 398 (2005) (quoting Spencer v.
    Allpress Logging, Inc., 
    134 Idaho 856
    , 860, 
    11 P.3d 475
    , 479 (2000)). “Thus, a statutory
    employer is anyone who, by contracting or subcontracting out services, is liable to pay worker’s
    compensation benefits if the direct employer does not pay those benefits.” Robison v. Bateman-
    Hall, Inc., 
    139 Idaho 207
    , 210–11, 
    76 P.3d 951
    , 954–55 (2003) (citing I.C. § 72-216(1), (2)).
    The Legislature carved out an exemption from worker’s compensation liability, however,
    for “casual employment.” I.C. § 72-212(2). If the employment is “casual,” the employer is not
    liable for worker’s compensation payments to the employee. 
    Id. This “casual
    employment”
    exemption applies with equal force to statutory employers and direct employers. This is so
    because the liability of statutory employers is completely determined by the liability of direct
    employers. Under I.C. § 72-216(1), a statutory employer is liable for compensation “in any case
    where such employer would have been liable for compensation if such employee had been
    working directly for such employer.” I.C. § 72-216(1). Put another way, a statutory employer is
    liable to his employee only to the extent that a direct employer would have been liable to the
    same employee. Conversely, if the direct employer is exempt, the statutory employer also is
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    exempt because the statutory employer’s liability is contingent on the direct employer’s liability.
    To find otherwise, as Stringer contends, is contrary the clear language of I.C. § 72-216(1).
    Here, the Commission held Griffeth was Stringer’s statutory employer. Neither party
    contests this holding. Therefore, Griffeth is liable unless Stringer’s employment falls under the
    “casual employment” exemption.
    B.     Griffeth Is Exempt From Worker’s Compensation Liability Because Stringer’s
    Employment Was “Casual.”
    Although I.C. § 72-212(2) does not define the term “casual employment,” Anderson v.
    Gailey, 
    97 Idaho 813
    , 820, 
    555 P.2d 144
    , 151 (1976), we have delineated the concept through
    our case law. In Stoica v. Pocol we stated, “The term ‘casual’ applies to the employment and not
    to the employee, and the determination of whether employment is casual must be decided upon
    the facts of each case.” 
    136 Idaho 661
    , 665, 
    39 P.3d 601
    , 605 (2001) (citing Manning v. Win Her
    Stables, Inc., 
    91 Idaho 549
    , 554, 
    428 P.2d 55
    , 60 (1967)). We have described casual employment
    as “includ[ing] only that employment which arises occasionally or incidentally or which comes
    at uncertain times or at irregular intervals.” 
    Id. (citing Tuma
    v. Kosterman, 
    106 Idaho 728
    , 
    682 P.2d 1275
    (1984)). Similarly, we have held “casual” referred to “employment ‘whose happening
    cannot be reasonably anticipated as certain or likely to occur or to become necessary or desirable
    and which is not a usual concomitant of the business, trade or profession of the employer.” 
    Id. (citing Manning,
    91 Idaho at 
    554, 428 P.2d at 60
    ). We have used essentially this same concept of
    casual employment over the course of many decades. See Wachtler v. Calnon, 
    90 Idaho 468
    ,
    472, 
    413 P.2d 449
    , 450 (1966) (collecting cases).
    Applying our definition, Stringer’s employment with Griffeth was undoubtedly casual.
    First, no one expected Stringer to work on the clinic long-term. In total, Stringer worked on the
    project for about eleven or twelve days, with about six or seven of those days including some
    beam placement work. Second, no one expected Stringer to work on the clinic again. In fact,
    Robinson told Stringer that he would try to arrange for unrelated work for Stringer after the
    clinic project’s completion. Third, Stringer’s payment was not typical of a permanent or regular
    employee. For both the trim and beam placement work, Stringer was paid by Robinson in cash or
    by personal check without any tax withholding. Fourth, although Griffeth once expressed some
    dissatisfaction with Stringer’s work, Robinson maintained primary control over Stringer’s
    employment. Robinson hired Stringer, set his work hours, directed him to the clinic and
    unrelated job sites, and provided him with the necessary tools, materials, and equipment.
    4
    Moreover, Robinson instructed Stringer on the beam placement work, including on the day of
    Stringer’s injury. Finally, Griffeth was in the physical therapy profession, not the construction
    trade. He had no plans to remodel the clinic in the future. In sum, this Court finds that substantial
    and competent evidence supports the Commission’s decision that Stringer’s employment as a
    statutory employee of Griffeth was casual. See, e.g., Larson v. Bonneville Pac. Servs. Co., 
    117 Idaho 988
    , 990, 
    793 P.2d 220
    , 222 (1990) (held employment was casual when a company hired a
    laborer for a one-time, two-to-three week long project outside the company’s regular line of
    business with no plans for another project in the future); Orr v. Boise Cold Storage Co., 
    52 Idaho 151
    , 
    12 P.2d 270
    , 270 (1932) (held employment was casual when an ice storage company hired a
    carpenter for a one-time, ten-day building repair project).
    Although we have followed a similar definition of casual employment for nearly a
    century, Stringer asks us to ignore our definition. His justification is that the casual employment
    exemption as applied to statutory employers would insulate all statutory employers from
    worker’s compensation liability. In turn, this subverts the Legislature’s goal of compensating
    injured employees of subcontractors who fail to pay worker’s compensation benefits. Yet, as we
    discussed above, we are not at liberty to disregard the plain language of the Idaho Code and
    eliminate the casual employment exemption for statutory employers. See Grazer v. Jones, 
    154 Idaho 58
    , 66–67, 
    294 P.3d 184
    , 192–93 (2013). Only our Legislature has that power.
    VI. CONCLUSION
    We affirm the Commission’s decision. Neither party requested attorney’s fees on appeal.
    Costs on appeal are awarded to Respondents.
    Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON, CONCUR.
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