JOSHUA RECHTFERTIG, Employee, v. MICHAEL SPIERING, UNINSURED, Employer, and ST. MARY=S DULUTH CLINIC HEALTH SYS., and JC CHRISTENSEN/RADIOLOGICAL ASSOCS., Intervenors, and SPECIAL COMP. FUND, Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 19, 2007
EXCLUSION FROM COVERAGE - CASUAL EMPLOYMENT; STATUTES CONSTRUED - MINN. STAT. ' 176.041, SUBD. 1(k). Where the employee was hired by a homeowner to help close in a garage apartment being built by the homeowners, which was intended for their own use, the work was temporary and of relatively short duration, the days of work were uncertain and dependent on whether there was work to do on a particular day and whether a family member would be present at the property, the employment was Acasual,@ and the compensation judge erred in finding to the contrary.
Determined by: Johnson, C.J., Wilson, J., and Pederson, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Donald C. Erickson, Fryberger, Buchanan, Smith & Frederick, Duluth, MN, for the Employee. Forrest Hutchinson, Forrest Hutchinson and Assocs., Duluth, MN, for the Uninsured Employer. John R. Baumgarth, Special Compensation Fund, Duluth, MN, for the Appellant.
THOMAS L. JOHNSON, Judge
The Special Compensation Fund appeals the compensation judge=s finding that Joshua Rechtfertig was not a casual employee within the meaning of Minn. Stat. ' 176.041, subd. 1(k). We reverse.
Michael Spiering, the respondent, and his wife, Mary, owned residential property in Duluth, Minnesota, upon which they intended to build a home and a garage, with a small apartment on the second floor of the garage. The Spierings decided to first complete the garage with the apartment where they planned to live while the house was being constructed. Spiering began the construction of the home in August 2005 with help from his wife and his brothers, none of whom were paid. Mr. Spiering=s principal occupation was as a mechanic.
Joshua Rechtfertig worked with Mr. Spiering=s sister-in-law, Jean Eckman, at a restaurant in Duluth. In August 2005, Mr. Rechtfertig was discharged from his employment and Ms. Eckman informed Mrs. Spiering that Mr. Rechtfertig was looking for work. Mr. Spiering decided to hire Mr. Rechtfertig because he needed to get the structure closed in before winter, and agreed to pay him $10.00 per hour. Mr. Rechtfertig told Mr. Spiering he had been hired as a waiter for a new restaurant in Duluth which would be opening soon. It was understood Mr. Rechtfertig would leave Mr. Spiering=s employ when the restaurant opened. The new restaurant ultimately opened in October 2005.
Mr. Rechtfertig commenced working for Mr. Spiering on or about September 5, 2005, and worked until he was injured on September 27, 2005. No written records were maintained of the dates or hours worked or the amounts paid to Mr. Rechtfertig. Whether Mr. Rechtfertig would work on a particular day depended on the weather, whether there was work to do on that particular day, and whether Mr. Spiering or another family member was going to be present at the property. Mr. Spiering testified that two or three days a week he had to work at his repair shop and could not work on the house. Mr. Spiering and Mr. Rechtfertig agreed that Mr. Rechtfertig would not work on Sundays so he could spend the day with his girlfriend. Typically, Mr. Rechtfertig and Mr. Spiering spoke each morning to determine whether Mr. Rechtfertig would work that day. Mr. Spiering normally paid Mr. Rechtfertig at the end of each day. Mr. Rechtfertig estimated that prior to his injury he worked approximately 35 hours a week, three and a half days a week, and estimated he was paid approximately $1,000.00. On his 2005 income tax return, Mr. Rechtfertig reported income of $998.75 from Michael Spiering. Mr. Spiering estimated he paid Mr. Rechtfertig between $400.00 and $1,000.00 for the days he worked.
Mr. Rechtfertig=s work at the job site was first to clean up the site and then assist in the framing in and roofing of the structure. He assisted in sheathing the exterior walls; moving lumber from the drop point to a spot closer to the building; framing interior windows and doors; placing the floor joists and flooring; readying the structure for placement of rafters; measuring, cutting and placing of the rafters; and placing plywood sheeting on the roof. On September 27, 2005, Mr. Rechtfertig fell off a ladder in the course and scope of his employment. Mr. Spiering was uninsured for workers= compensation liability.
Mr. Rechtfertig filed a claim petition seeking workers= compensation benefits. Following a hearing, the compensation judge found Mr. Rechtfertig=s work for Mr. Spiering was regular, routine, predictable, and continuous and rejected the defense that the employment was casual within the meaning of Minn. Stat. ' 176.041, subd. 1(k). Because Michael Spiering was uninsured for workers= compensation liability, the compensation judge ordered the Special Compensation Fund to pay benefits to Mr. Rechtfertig, and ordered the uninsured employer to reimburse the Special Compensation Fund for benefits paid, including a penalty of 65 percent. The Special Compensation Fund appeals.
Minn. Stat. ' 176.041, subd. 1, excludes certain employments from the application of Chapter 176. Subdivision k of the statute excludes Aa person whose employment at the time of the injury is casual and not in the usual course of the trade, business, profession, or occupation of the employer.@ Under the statute, to exclude an employee from workers= compensation coverage, the employment must be both casual and not in the usual course of business of the employer. O=Rourke v. Percy Vittum Co., 166 Minn. 251, 207 N.W. 636, 4 W.C.D. 39 (1926). In this case, Mr. Rechtfertig concedes his employment was not in the course of the trade, business profession or occupation of Mr. Spiering. Accordingly, the sole issue is whether the employment was casual at the time of injury.
The Special Compensation Fund asserts the employment in this case was casual within the meaning of the statute and, thus, not covered by the act. The Fund further seeks a precise definition of casual employment. The Fund asserts homeowners need some kind of a standard so they can know whether a particular employment relationship is or is not casual employment. Accordingly, the Fund asks the case be remanded to the compensation judge with instructions to state the specific standard applied by the judge, or asks this court to develop a legal definition of casual employment.
The purpose of the Workers= Compensation Act is to provide security for persons in the work force and to shift the burden of economic loss to industry by holding employers strictly liable for work-related injuries sustained by their employees. Tracy v. Streater/Litton Indus., 283 N.W.2d 909, 32 W.C.D. 142 (Minn. 1979). The terms employer and employee as defined in Minn. Stat. ' 176.011 are generally broad enough to include every employment relationship regardless of whether the employer was engaged in a trade or business. Absent Minn. Stat. ' 176.041, subd. 1(k), any person, not engaged in a trade or business, who hired another to perform any service would fall under the operation of the act. The purpose of the casual employment exception is to narrow the application of the act so as to exclude those casual employments so common in everyday life. Neither party cited any case from Minnesota or any other jurisdiction which provides a standard or definition of the phrase Acasual employment.@ Homeowners employ persons to perform a wide variety of construction and remodeling, repair and maintenance tasks at their residential property. Some may be irregular or may be periodically regular; some take less than a day or a week, others may continue over an extended period of time. Whether any such employment is casual is not before us but evidences the difficulty of proposing a standard or definition which will be decisive of every case. Accordingly, we decline to articulate a legal definition beyond that already reflected in the case law.
Professor Larson states that employment is casual when it is Airregular, unpredictable, sporadic, and brief [in] nature.@ 4 Arthur Larson & Lex K. Larson, Workers= Compensation Law ' 73.02 (2006). In Billmayer v. Sanford, 177 Minn. 465, 225 N.W. 426, 5 W.C.D. 242 (1929), the supreme court wrestled with the question of how to define casual employment, stating:
What is a casual employment? Experience teaches that no exact definition of the term is advisable. Our first thought of the term is that it indicates something which comes without regularity and is occasional and incidental. Its antonyms are Aregular,@ Acertain,@ Aperiodic,@ and Asystematic.@ A thing is casual when it comes without regularity and is of comparatively minor importance. It is usually temporary and of short duration, where the employment cannot be characterized as permanent or periodically regular, but occurs by chance, or with the intention and understanding of the part of both employer and employe[e] that it shall not be continuous; it is casual.
Id., 225 N.W. at 427, 5 W.C.D. at 243-44.
In the Billmayer case, the employee was initially hired to repair storm windows on Ms. Sandford=s rental property. She later found other repair work for him to do. The court noted the work was of such character that the time required to perform it could not be determined in advance. Billmayer was injured after working for three weeks. The court noted the employer did not need a regular employee because the work to be done was of unknown but short duration and understood by both parties to be temporary. The court stated the employment was occasional and irregular and concluded the employment was casual.
In Amundsen v. Poppe, 227 Minn. 124, 34 N.W.2d 337, 15 W.C.D. 351 (1948), Amundsen was hired by Poppe to renovate an old house. The parties agreed Amundsen would be paid $76.50 for a six-day week. Amundsen started working on the house in September and was injured in December having worked on the job for approximately 12 weeks and was paid slightly over $1,000.00 for the three-month period. The court noted that Amundsen did practically all the manual work on the house except for plumbing and foundation work with minor assistance from Poppe. On these facts, the court concluded Amundsen=s employment was casual, explaining:
Here, it is clear that the employment was not to be permanent or continuous under the contract of hire. At most, it was to last only until the completion of the remodeling job on the so called Aold@ house.
Id., 34 N.W.2d at 340-41, 15 W.C.D. at 357.
In this case, the parties agreed at the outset Mr. Rechtfertig=s employment would be temporary and of a short duration, ending when the new restaurant opened. At most, the job would last only until the structure was enclosed. The days of work were irregular and uncertain and depended on whether there was work to do on a particular day, and whether Mr. Spiering or a family member would be present at the property. We find this case is most similar to Billmayer and Amundsen and conclude Mr. Rechtfertig=s employment was casual within the meaning of Minn. Stat. ' 176.041, subd. 1(k). The compensation judge=s determination is, accordingly, reversed.
 Part-time employment under which the employee is to render services at regular recurring periods may not be casual. See, e.g., Chisholm v. Davis, 207 Minn. 614, 292 N.W. 268, 11 W.C.D. 229 (1940).