1 IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 40087

GEFF STRINGER,

Claimant

- Appellant,

v. WILLIAM BRYAN ROBINSON, d/b/a HIGHMARK CONSTRUCTION, and RUSSELL G. GRIFFETH, d/b/a TETON PHYSICAL THERAPY, P.A., Employer, and IDAHO STATE INSURANCE FUND, Surety,

Defendants

- Respondents.

_____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) Pocatello, August 2013 Term
2013 Opinion No. 125

Filed: November 27 , 2013
Stephen W. Kenyon, Clerk

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. N ATURE OF THE C ASE The Idaho Industrial Commission (the Commission) held that a statutory employer
, Russell Griffeth, was not liable for payments under Idaho’s worker’s compensation l aw because
the claimant , Geffary Stringer, fell within t he “casual employment” exemption set forth in I.C. §
72

- 212(2). Str inger 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. F ACTUAL AND P ROCEDURAL B ACKGROUND 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 employ ed in the construction trade. He has received2 no training as a contractor and wa s 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 t he city required a lice nsed 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 hir ed 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 Robinso n 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 Robin son job
sites unrelated to the clinic project

. As the clinic project neared completion, the construction workers used a hoist attached to
the roof to m ove heavy beams into position in the attic

. Unfortunately, on or n ear the last day of the project, the ceiling collapsed
, and a beam fell on String er. The impact from the beam
fractured Stringer’s left ankle. At the time of the accident, Robinson did not have wor ker’s compensation coverage. Stringer filed worker’s compensation complaints agains t both Robi nson 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 bene fits to Stringer, Grif feth, as the statutory employer, normally
woul d 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 “c asual” under I.C. § 72

- 212(2). Stringer t imely appealed to this Court. We affirm.

1 There are two cat egories of statutory employers. A category one statutory employer includes “ any person who has expressly or impliedly hired or contra cted 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 t he business there carried on.” Cordova v. Bonneville Cnty. Joint Sch. Dist. No. 93 , 144 Idaho 637, 641, 167 P.3d 774, 778 (2007).3 III. I SSUE S ON A PPEAL 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. S TANDARD OF R EVIEW 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 7 18, 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. A NALYSIS A. A Statutory Employer Is Not Liable For Worker’s Compensation Benefits If The Claimant’s Employment Fa ll s Within The “Casual Employment” Exemption From Worker’s Compensation Coverage. The concept of a statutory employer is “ designed to prevent an employer from avoid ing liability under the workmen’ s compensation statutes by sub

- con tracting 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 85 6, 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 employ er does not pay those benefits.” Rob ison 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 is4 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 , th e 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 “C asual .” 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 th e concept through
our case law. In Stoica v. Pocol we stated, “T he term ‘casual’ applies to the emp loyment and not to the emp loyee, and the determination of whether employment is casual must be decid ed 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 t imes or at irregular intervals .” Id. (citing Tuma v. Kosterman , 106 Id aho 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 conco mitant 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, n o one expected Stri nger 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 incl uding 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, althou gh Griffeth once expressed some dissatisfaction with Stringer’s work, Robinson maintained primary con trol 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.5 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 support s the Commission’s decision that Stringer’s employment as a statutory employee of Griffeth was casual. See
, e.g. , Larson v. Bonneville Pac. Serv s

. 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 I daho 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 t hat the casual employment

exem ption as applied to statu t ory employers would insulate all statutory em ployers from

w orker’s compensation liability. In turn, this subvert s the Legislature’s goal of compensating injured employees of subcontractors who fail to pay wo rker’s compensation benefits. Yet, as we discussed above, w e are not at liberty to disregard the plain language of the Idaho Code and
el iminate the casual employment ex e m ption 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. C ONCLUSION We affirm t he Commission’s decision . Neither party requested attorney’s fe es on appeal.
C osts on appeal are awarded to Respondents

.
Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON, CONCUR.