Jason Witthus v. Harvey L Noyes, et. al.

Jason Witthus v. Harvey L Noyes, et. al. No WCC22-6456 (W.C.C.A. September 30, 2022)

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. They decided to sell the home, and before doing so needed some repairs done to the house and outbuildings. They used Project Turnaround (PT) to do so. 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.

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. Witthus first tried to file a negligence law suit in district court and did not prevail. He then retained a new attorney and filed for workers’ compensation benefits. The Special Compensation Fund filed an answer on behalf of Mr. Noyes.

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). Witthus appealed.

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). 

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 v. Sanford, 177 Minn. 465 at 467, 225 N.W. 426 at 427, 5 W.C.D. 242 at 243-44 (1929).

In this case, 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 was no evidence presented that Mr. Noyes had ever engaged in any sort of farming activity. Witthus argued that Mr. Noyes desire to increase the sale price of the home was “pecuniary motive” akin to a business motive. The court rejected this argument and noted the statute was very specific with “Trade, business, or occupation.”

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.

The WCCA affirmed the compensation judge finding Witthus was casually employed, and denied benefits.