JASON WITTHUS, Appellant, v. HARVEY L. NOYES, Respondent, and BLUE CROSS BLUE SHIELD OF MINN., Intervenor and SPECIAL COMP. FUND.

Jason Witthus appeals from the compensation judge’s determination that Mr. Witthus was not an employee of Harvey Noyes as defined by the Minnesota Workers’ Compensation Act (WCA), and from the denial of his claim for workers’ compensation benefits.  We affirm.

In 2018, Harvey Noyes and his wife owned a home in Marshall, Minnesota where they had lived for twenty years.  At one time, the house had been part of a farm, but Mr. Noyes had never grown crops, raised livestock, or engaged in any sort of farming activity.  Mr. Noyes was employed as a food buyer.  He accepted a new job and he and his wife decided to sell their home.  Before the home was put on the market, some repairs and painting needed to be made to the house and outbuildings.  Mr. Noyes contacted Project Turnaround for assistance with these projects.

Project Turnaround (PT) is a residential chemical addiction program located in Marshall.  As a part of its effort to transition its clients back into the community, it solicits local businesses and homeowners for work that PT clients could perform.  Available jobs were posted on a sign-up sheet on a bulletin board and PT clients signed up for available jobs on a “first come, first served” basis. PT clients were paid in cash at the end of each workday.  Mr. Noyes made frequent use of the program.  In the past, he had them do cleanup, painting, and similar projects at his home.  He would typically pick up a PT client in the morning and drop them off, paying them $100 in cash at the end of the day.

In the summer of 2018, Jason Witthus was in the inpatient treatment program at PT.  He had already worked a number of odd jobs for Mr. Noyes, including repairing an old garden shed.  On June 2, 2018, the shed needed painting.  To reach window frames to be painted, Mr. Witthus used a ladder and stood on a ledge or landing.  Mr. Witthus was on this ledge when he slipped and fell to the ground.  He landed on his feet, fracturing his left heel.  The injury required surgical intervention.

Mr. Witthus retained an attorney and filed a negligence lawsuit against Mr. Noyes in district court.  In the suit, Mr. Witthus did not claim he was an employee of Mr. Noyes.  The district court judge dismissed the claim on the grounds that the risk of injury to Mr. Witthus was “open and obvious.”  There was no appeal of the dismissal.  Mr. Witthus retained a new attorney and filed a workers’ compensation claim in which he alleged Mr. Noyes was his employer.  Mr. Noyes did not have workers’ compensation coverage for the PT clients he had working on his projects.  The Special Compensation Fund filed an answer on behalf of Mr. Noyes and Mr. Noyes retained counsel on his own behalf.

The Special Compensation Fund filed a motion on December 30, 2021, seeking dismissal of the claim petition under Minn. Stat. § 176.041, subd. 1(11) and/or Minn. Stat. § 176.041, subd. 1(14).  The motion was heard by a compensation judge on January 25, 2022.  In an Order served and filed February 3, 2022, the compensation judge granted the motion, finding that “the employee’s employment is casual and barred under Minn. Stat. § 176.041, subd. 1(11).”  The judge further concluded that, in view of this finding, it was not necessary to consider the possible application of Minn. Stat. § 176.041, subd. 1(14).

Mr. Witthus appeals from the Order of the compensation judge.

On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1(3).  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

Mr. Witthus appeals from the compensation judge’s findings that the employment relationship between Mr. Witthus and Mr. Noyes was casual, and from the dismissal of Mr. Witthus’s claims.  We conclude the compensation judge’s determination is supported by the statute and by substantial evidence in the record.  We affirm the decision.

Under the Minnesota Workers’ Compensation Act (WCA), injuries are excluded from workers’ compensation coverage if the employment of the injured person is: (1) casual, and (2) the employment at the time of the injury is “not in the usual course of the trade, business, profession, or occupation of the employer.”  Minn. Stat. § 176.041, subd. 1(11).  The term “casual” is not defined under any statute or rule.  However, the Minnesota Supreme Court considered the casual employment requirement of the statute in reversing the decision of the Industrial Commission in Billmayer v. Sanford, 177 Minn. 465, 225 N.W. 426, 5 W.C.D. 242 (1929).  Mr. Billmayer was hired to repair some storm windows on rental property owned by Mrs. Sanford, and was injured while doing that work.  The supreme court held that Mr. Billmayer was a casual employee and that his work was not in the usual business or occupation of Mrs. Sanford.  On the issue of casual employment, the court noted that casual employment “indicates something which comes without regularity and is occasional and incidental.  It is usually temporary and of short duration. . . . with the intention and understanding on the part of both employer and employee that it shall not be continuous.”  Billmayer, 177 Minn. at 467, 225 N.W. at 427, 5 W.C.D. at 243-44.

The supreme court also considered the issue of casual employment in Amundsen v. Poppe, 227 Minn. 124, 34 N.W.2d 337, 15 W.C.D. 351 (1948).  Mr. Amundsen was hired by a homeowner to remodel an older house and was injured after 12 weeks on the job.  In affirming the denial of workers’ compensation benefits to Mr. Amundsen, the court noted that the job was not meant to be continuous and would last only until the remodeling was done.  Mr. Amundsen was held to be a casual employee and the work was determined to be not in the usual trade or occupation of the homeowner.

This court more recently addressed the application of Minn. Stat. § 176.041, subd. 1, in Rechtfertig v. Spiering, No. WC06-302 (W.C.C.A. June 19, 2007), summarily aff’d (Minn. Nov. 6, 2007).  Mr. and Mrs. Spiering owned residential property in Duluth where they intended to build a home and garage with an apartment over the garage.  Mr. Rechtfertig had been laid off from his work as a waiter at a restaurant and was available for other work until his new restaurant job became available.  Mr. Rechfertig was hired to help remodel the garage and was injured when he fell off a ladder.  He brought a workers’ compensation claim against the Spierings.  In reversing the compensation judge’s award of benefits, this court reviewed Professor Arthur Larson’s treatise on workers’ compensation and cited to the Billmayer and Amundsen decisions.  The court concluded that the facts presented with Mr. Rechtsfertig’s injury were analogous to those in Billmayer and Amundsen and held that Mr. Rechtfertig’s claim was barred by the statute.

In the case before us, Mr. Noyes was employed as a food buyer at the time of Mr. Witthus’s injury.  The work performed by Mr. Witthus and the other PT clients was to prepare Mr. Noyes’s home for sale.  While the house had once been part of a farm, there is no evidence that Mr. Noyes had ever engaged in any sort of farming activity.

In his brief, Mr. Witthus argues that Mr. Noyes wanted to increase the sale price of the property and that this “pecuniary” motive is akin to a business motive which would satisfy the “usual trade or business” element of the statute.  (App. Brief at 37.)  The possibility that such a motive may exist here or in any case in which a homeowner wants to maximize a sale price is irrelevant.  The statute uses very specific language: “trade, business or occupation.”  Minn. Stat. § 176.041, subd. 1(11).  There is no evidence that any of those labels could be applied to Mr. Noyes in this context.

There is also no evidence in the record before us that Mr. Witthus was engaged in anything other than casual employment at Mr. Noyes’s home.  He was not hired directly by Mr. Noyes, but, essentially, through a labor service – the signup sheet at PT.  He was paid in cash at the end of each day and was not required or expected to return the next day.

We conclude that the decision of the compensation judge is supported by the plain language of the statute, long-standing caselaw, and the uncontroverted evidence.  We affirm.