dissents.
I respectfully dissent from the Court’s opinion. In my view, there is substantial and competent evidence other than the logging contract supporting the Commission’s finding that Kiele was an employee of Henderson. The Court’s rejection of the logging contract as evidence to support the Commission’s finding does not dictate a remand. It dictates only that we search the record to see if there is other substantial and competent evidence to support the Commission’s finding. Darner v. Southeast Idaho In-Home Serv., 122 Idaho 897, 841 P.2d 427 (1992).
I first note that the Court’s opinion appears to base its conclusion on the premise that the fact that Henderson showed Kiele what work needed to be done does not require a holding that the relationship was that of employee-employer. This misstates the scope of review that the Court is required to employ. The question is not whether there is evidence that requires a finding that Kiele was an employee of Henderson. Rather, the test is whether there is substantial and competent evidence to support the Commission’s finding.
Henderson gave Kiele specific directions about the work Kiele was to do on each particular road. While this might not be enough evidence to convince this Court that Kiele was an employee of Henderson, if this Court were the finder of fact, it constitutes substantial and competent evidence to support the Commission’s decision.