Charles O'Keefe v. Top Notch Farms , 2017 Ind. App. LEXIS 312 ( 2017 )

FILED
Jul 27 2017, 10:27 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David M. Lutz Michael Ryan Hartman
David M. Lutz, LLC Shannon A. Middleton
Fort Wayne, Indiana Gutwein Law
Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles O’Keefe, July 27, 2017
Appellant-Plaintiff, Court of Appeals Case No.
93A02-1702-EX-386
v. Appeal from the Indiana Worker’s
Compensation Board
Top Notch Farms, The Honorable Linda Peterson
Appellee-Defendant. Hamilton, Chairman
Trial Court Cause No.
C-230633
Pyle, Judge.
Statement of the Case
[1] Charles O’Keefe (“O’Keefe”) appeals the Indiana Worker’s Compensation
Board’s (“Board”) denial of his claim for worker’s compensation benefits for a
work-related injury. The Board concluded that O’Keefe was excluded from
receiving worker’s compensation benefits under the Worker’s Compensation
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Act (“WCA”) because he was working as a farm or agricultural employee when
he was injured, and “farm and agricultural employees” are exempt from the
Act. On appeal, O’Keefe argues that, although he worked for a farm, he
primarily drove a semi-truck and, therefore, did not qualify as a farm or
agricultural employee. We conclude that, even though O’Keefe drove a semi-
truck, his work was agricultural in character. Accordingly, we affirm the
Board’s decision.
[2] We affirm.
Issue
Whether the Board erred in determining that O’Keefe qualified as
a farm or agricultural employee for purposes of the Worker’s
Compensation Act.
Facts
[3] Top Notch Farms, Inc. (“Top Notch”) is a partnership between three brothers
engaged in farming corn and soybeans in White and Jasper counties. In 2013,
O’Keefe was looking for a job when he heard that Top Notch was hiring.
Brandon Wuethrich, one of the Top Notch partners, told O’Keefe that Top
Notch would hire him as a full-time employee if he were “willing to do other
jobs other than just driving truck.” (Appellant’s App. Vol. 2 at 20). O’Keefe
responded, “I guess I’m willing to do whatever because I need a job.” He then
began to work for Top Notch on August 27, 2013. (Appellant’s App. Vol. 2 at
20).
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[4] During his time working for Top Notch, O’Keefe performed a variety of duties
including washing manure off of the farm’s trucks, painting the walls of the
farm’s shop, sweeping the granary, servicing the trucks, and hauling corn and
soy beans. In addition to farming, Top Notch was “getting into a manure
operation where [it] hauled a lot of manure for other farms.” (Appellant’s App.
Vol. 2 at 21). O’Keefe spent a lot of time hauling manure for this operation or
“trying to thaw out the manure pits at the dairy farm.” (Appellant’s App. Vol.
2 at 22). Top Notch also hired outside truck drivers to help haul manure to
fields. These drivers used their own trucks and were paid according to the
number of loads they hauled whereas O’Keefe was paid by the hour.
[5] On June 3, 2014, Dustin Wuethrich, one of Top Notch’s partners, asked
O’Keefe to drive a semi-truck and tanker to Ceres Solutions to pick up liquid
fertilizer. At Ceres Solutions, O’Keefe was instructed to stay up on top of the
tanker while it was filling with fertilizer. The computer monitoring the fill was
supposed to shut down the pump when the tanker was full. O’Keefe followed
Ceres Solutions’ instructions, but the pump did not shut down like it was
supposed to, and the tanker overflowed. As a result, the hose “blew out of the
tanker” and knocked O’Keefe off of the top of the tanker. (Appellant’s App.
Vol. 2 at 73). He fell thirteen feet to a concrete pit below and lost
consciousness. When he regained consciousness, he returned to Top Notch
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Farms, reported the accident, and then went to the hospital. He never returned
to work for Top Notch.1
[6] On June 18, 2015, O’Keefe filed an application for worker’s compensation
benefits with the Board, asserting that Top Notch had refused to treat his
injuries as work-related and had not provided any benefits or medical care as
required under the WCA. Top Notch’s worker’s compensation insurance had
expired two days prior to his accident. On October 4, 2016, a single hearing
member of the Board entered an order denying O’Keefe’s claim. The member
found that O’Keefe was a farm or agricultural employee at the time of his injury
and was, therefore, excluded from relief under the WCA because the WCA
exempts “farm or agricultural employees.” See IND. CODE § 22-3-2-9(a)(2).
Subsequently, O’Keefe applied for review by the full Board, and the Board held
a hearing on his claim on December 5, 2016. At the conclusion of the hearing,
the Board affirmed the single hearing member’s decision. O’Keefe now
appeals.
Decision
[7] On appeal, O’Keefe argues that the Board erred when it denied his worker’s
compensation claim because he was not, as the Board concluded, a farm or
agricultural employee when he was injured. He argues that he primarily
1
O’Keefe writes in his Appellant’s Brief that he sustained “serious injuries” as a result of his accident on
June 3, 2014, but he does not specify what these injuries were. (O’Keefe’s Br. 6).
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operated a semi-truck on behalf of Top Notch and should therefore be
considered a semi-truck driver rather than an agricultural employee.
[8] Preliminarily, we note that the Board reviewed O’Keefe’s claim based on a
paper record that included depositions and answers to interrogatories. We have
recently stated that our standard of review of an administrative decision that is
based on a paper record is as follows:
In reviewing a worker’s compensation decision, an appellate
court is bound by the factual determinations of the Board and
may not disturb them unless the evidence is undisputed and leads
inescapably to a contrary conclusion. We examine the record
only to determine whether there is substantial evidence and
reasonable inferences that can be drawn therefrom to support the
Worker’s Compensation Board’s findings and conclusion. We
will not reweigh the evidence or reassess witness credibility. As
to the Board’s interpretation of the law, an appellate court
employs a deferential standard of review of the interpretation of a
statute by an administrative agency charged with its enforcement
in light of its expertise in the given area. The Board will only be
reversed if it incorrectly interpreted the Act.
Ward v. Univ. Notre Dame, 25 N.E.3d 172, 178 (Ind. Ct. App. 2015) (quotation
omitted), reh’g denied, trans. denied.
[9] The Board’s denial of O’Keefe’s worker’s compensation claim was based on its
determination that he was a farm or agricultural employee for purposes of the
WCA. The WCA requires employers to “‘provide their employees with
compensation for personal injuries caused by an accident arising out of and in
the course of employment.’” Thompson v. York Chrysler, 999 N.E.2d 446, 450
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(Ind. Ct. App. 2013) (quoting Outlaw v. Erbrich Products Co., Inc., 777 N.E.2d
14, 25 (Ind. Ct. App. 2002), reh’g denied, trans. denied). However, INDIANA
CODE § 22-3-2-9(a)(2) of the WCA exempts “farm or agricultural employees”
from receiving worker’s compensation benefits for work-related injuries.
Whether a worker is a farm or agricultural employee depends on the “‘whole
character’ of the work the employee performs,” rather than the “work
performed at the time of the injury or the nature and scope of the employer’s
business.” Gerlach v. Woodke, 881 N.E.2d 1006, 1012 (Ind. Ct. App. 2008)
(quoting Rieheman v. Cornerstone Seeds, Inc., 671 N.E.2d 489, 492 (Ind. Ct. App.
1996), trans. denied), trans. denied. The terms “farm employee” and “agricultural
employee” have substantially the same meaning. Rocky River Farms, Inc. v.
Porter, 925 N.E.2d 496, 498 (Ind. Ct. App. 2010), trans. denied. Agriculture is
defined as “‘the art or science of cultivating the soil, including the planting of
seed, the harvesting of crops, and the raising, feeding, and management of
live[]stock or poultry.’” Id. (quoting Gerlach, 881 N.E.2d at 1012).
[10] O’Keefe argues that his driving of a semi-truck was not agricultural in nature
and, therefore, he was not an agricultural employee. In support of this
argument, he notes that although he frequently transported manure or fertilizer
for farm work, he did not apply the manure or fertilizer to any fields; nor did he
work in any fields. He also suggests that in Gerlach we held that “maintenance
work including work on farm machinery” was not agricultural. (Appellant’s
Br. 19).
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[11] However, O’Keefe’s argument regarding Gerlach is misguided. Gerlach specifies
that, in determining whether work is agricultural in nature, we look to the
“whole character” of the work. Gerlach, 881 N.E.2d at 1012. Therefore,
maintenance work is not categorically non-agricultural. In some instances,
maintenance work may be considered agricultural. We described this
distinction further in Makeever v. Marlin, 174 N.E. 517, 518 (Ind. Ct. App. 1931)
(internal quotation omitted), where we approved the following explanation
from the Supreme Court of Minnesota:
A workman is not a farm laborer simply because at the moment
he is doing work on a farm; nor because the task on which he is
engaged happens to be what is ordinarily considered farm labor.
The employee of an implement dealer does not become a farm
laborer while engaged in correcting the behavior of a self-binder
in the grain field of the owner, a farmer and customer of the
dealer. Nor would the employee of a well digger become a farm
laborer while stabling horses used on the drilling outfit. But a
farmer’s hired man would not cease to be a farm laborer while
adjusting harvesting machinery or stabling the horses of a
contractor drilling a well on the place. The modern farm laborer
doubtless does much work on the rapidly increasing electrical
equipment on farms. He continues a farm laborer while he does
it. But an electrician sent out from town to do the same thing
would not become a farm laborer for the occasion. So also a
farm laborer does not step out of his own part while doing
carpenter work for his farmer employer in the repair of farm
buildings. Neither does the carpenter who comes on to the farm
for the job of carpentry and nothing more. One continues a farm
laborer and the other does not become one.
Inasmuch as farm laborers are not subject to the Compensation
Law and most others are, two men, for example a farm laborer
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and the expert mechanic employed by the implement dealer, may
be engaged on the same task and be injured, both of them, by the
same accident, and yet only one be entitled to workmen’s
compensation. Neither the pending task nor the place where it is
being performed is the test. The whole character of the
employment must be looked to to determine whether he is a farm
laborer.
In Gerlach, we held that the employee was hired to perform “mainly mechanic
and repair work” and only began to take on other agriculturally-related work
when other employees quit. Gerlach, 881 N.E.2d at 1011. Therefore, his
mechanic and repair work was non-agricultural. Id. In other words, our
decision was based on our determination that the “whole character” of
Gerlach’s mechanical work was non-agricultural, not because mechanical work
can never be agricultural.
[12] As for the “whole character” of O’Keefe’s work, the record reveals that Top
Notch hired O’Keefe to complete general tasks required around its farms.
Towards that end, O’Keefe performed a variety of work during his employment
with Top Notch, including washing manure off of the farm’s trucks, painting
the walls of the farm’s shop, sweeping the granary, servicing the trucks, and
hauling corn, soy beans, and manure. He admits that although he primarily
drove a semi-truck for Top Notch, the overall character of his employment was
to perform any task that needed to be completed on the farm. Moreover, his
tasks as a semi-truck driver were integrally related to the work of a farm. He
hauled manure and fertilizer, which are necessary for growing crops. He then
transported those crops after harvest. We have previously held that
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transporting crops may be agricultural in nature. See Smart v. Hardesty, 149
N.E.2d 547 (Ind. 1958) (finding that employee worked in a dual capacity and
was working as an agricultural employee when he transported tomatoes to a
canning factory). O’Keefe’s hourly wage, which was not dependent on how
many loads he hauled, is further evidence that his employment was based on
completing general tasks required of him by Top Notch. In contrast, Top
Notch paid the employees it had hired solely to haul manure by the load rather
than by the hour.
[13] In light of these various factors, we conclude that the whole character of
O’Keefe’s employment was agricultural in nature. Accordingly, we affirm the
Board’s decision that O’Keefe was exempt from the WCA and could not
receive worker’s compensation benefits under the Act.2
[14] Affirmed.
May, J., and Brown, J., concur.
2
Alternatively, O’Keefe argues that he worked in a “dual capacity”—as an agricultural employee and as a
semi-truck driver. In cases where an employee is employed in a dual capacity, we must determine the
employee’s status as a farm or agricultural employee based on the work he was performing at the time of the
injury. Gerlach, 881 N.E.2d at 1012. However, because we have determined that O’Keefe was an
agricultural employee at all times, we need not address this distinction.
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