         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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                                                  RENDERED: MARCH 17, 2016
                                                      NOT TO BE PUBLISHED

                   ax truer Court of "fief ntfuritu
                              2015-SC-000183-WC


WENDY HANAWALT                                                       APPELLANT



                   ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO. 2014-CA-000744-WC
                  WORKERS' COMPENSATION NO. 13-00296



J. THOMAS BROWN, D/B/A
WILD ROSE EQUESTRIAN CENTER;
KAREN BROWN, D/B/A
WILD ROSE EQUESTRIAN CENTER;
UNINSURED EMPLOYERS' FUND;
HONORABLE OTTO DANIEL WOLFF,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                          APPELLEES



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, Wendy Hanawalt, appeals a Court of Appeals decision which

affirmed the dismissal of her workers' compensation claiin against Appellee,

Wild Rose Equestrian Center. Hanawalt argues that the Administrative Law

Judge ("ALJ") erred by finding that she is subject to the agricultural worker

exemption from coverage under the Workers' Compensation Act. • For the below

stated reasons, we affirm the Court of Appeals.

      Wild Rose provides horseback riding lessons, horse training, and horse

boarding services at its 200 acre property. One of the owners of Wild Rose,
Karen Brown, testified that Wild Rose was a farm with hayfields, pastures, and

horse boarding and riding facilities. The crops raised at Wild Rose were used

and consumed on site. Hanawalt testified that Wild Rose also hosted riding

academies and camps.

      Hanawalt was employed by Wild Rose to maintain and train horses. She

mucked stalls, retrieved hay for the horses, broke the horses, groomed the

horses, trained the horses, maintained fence lines, and performed other

common tasks for the care of horses. Hanawalt was paid twice a month based

on the number of hours she worked. On her tax returns she indicated her

occupation was "horse trainer."

      Hanawalt was riding a thoroughbred to show its owner the progress the

horse had made during training when she was thrown to the ground and

injured. The horse was being boarded and trained in preparation to be moved

to a different facility so that it could be properly trained as a race horse. Wild

Rose does not train horses to race. Hanawalt filed for workers' compensation.

Since Wild Rose did not have workers' compensation insurance on the date of

the injury, the Uninsured Employers' Fund was added as a party to the claim.

      After a review of the evidence, the A1.0 found that Hanawalt was not

covered under the Workers' Compensation Act per KRS 342.650(5) because she

was employed in agriculture. The ALJ reasoned that since Hanawalt worked

with the care and maintenance of horses, she was engaged in agricultural

work. The ALJ cited to Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44 (Ky.




                                         2
App. 1978), to support his finding. The Workers' Compensation Board and the

Court of Appeals, in a two to onel decision affirmed. This appeal followed.

         The Board's review in this matter was limited to determining whether the

evidence is sufficient to support the ALJ's findings, or if the evidence compels a

different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).

Further, the function of the Court of Appeals is to "correct the Board only

where the Court perceives the Board has overlooked or misconstrued

controlling statutes or precedent, or committed an error in assessing the

evidence so flagrant as to cause gross injustice." Id. at 687-88. Finally, review

by this Court "is to address new or novel questions of statutory construction,

or to reconsider precedent when such appears necessary, or to review a

question of constitutional magnitude." Id. The ALj, as fact-finder, has the sole

discretion to judge the credibility of testimony and weight of evidence.

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).

         Hanawalt argues that the Al.A. erred by finding she was an agricultural

employee and therefore exempted from the Workers' Compensation Act. She

argues that since Wild Rose provides horseback riding lessons and riding

facilities it does not qualify as an agricultural employer under KRS 342.630.

Hanawalt contends that Wild Rose is an entertainment venue. Hanawalt also

argues that training and working with horses which are being boarded at an

equestrian center is not an agricultural activity. We disagree.




1   Judge Taylor dissented without opinion.


                                              3
      KRS 342.630(1) exempts employers, and KRS 342.650(5) exempts

individuals, who are engaged in agriculture from the provisions of the Workers'

Compensation Act. KRS 342.0011(18), in pertinent part, defines agriculture

as, "the operation of farm premises, including . . . the raising of livestock for

food products and for racing purposes." It only matters how the livestock has

been raised and not what the final disposition or sale of the livestock will be

when considering if it constitutes an agricultural activity.   Stidham v. Duncan,

931 S.W.2d 463, 465 (Ky. App. 1996). In Fitzpatrick, 582 S.W.2d at 46, the

Court of Appeals stated that:

      [t]he legislative definition of agriculture is stated in general terms
      as meaning the operation of farm premises' and the following
      enumeration of more specific types of activity to be included within
      the general term does not have the effect of excluding all that is not
      mentioned. Particularly is this true when in the same definition
      the legislature went on specifically to enumerate those activities
      which were not to be included within the general term.

The logic expressed in Fitzpatrick makes sense when considering that a sheep

farm, which produces wool, does not produce either food products or livestock

for racing purposes, but certainly is engaged in agricultural activities.

      Applying these principles, we cannot say the ALJ erred by finding that

Hanawalt was employed in agriculture and exempted from the Workers'

Compensation Act per KRS 342.650(5). The feeding, housing, caring for, and

training of horses, even if owned by another individual than the farm owner,

has been held to be an agricultural activity. Michael v. Cobos, 744 S.W.2d 419

(Ky. 1987); Fitzgerald, 582 S.W.2d at 47. It is undisputed that Hanawalt's job

at Wild Rose involved all of these activities. Additionally, it does not matter if



                                          4
the horses were to be sold for racing purposes or used at Wild Rose for riding

lessons. Hanawalt was employed in agricultural activities at Wild Rose and the

ALJ's opinion is supported by substantial evidence.

      For the above stated reasons, we affirm the Court of Appeals.

      All sitting. Minton, C.J.; Cunningham, Hughes, Keller, and Venters, JJ.,

concur. Noble, J., concurs by separate opinion in which Wright, J., joins.

      NOBLE, J., CONCURRING: The dispute in this case arises out of the

application of KRS 342.650(5), which exempts "[a]ny person employed in

agriculture" and KRS 342.0011(18), which defines "[a]griculture." The ALJ, the

Workers' Compensation Board, and the Court of Appeals found the Appellant,

Wendy Hanawalt, to be exempt. The majority of this Court has affirmed the

Court of Appeals.

      Wendy Hanawalt worked for Wild Rose Equestrian Center to maintain

and train horses. The "farm" where the claimant worked operates primarily as

a business giving riding lessons. But it also boards and trains horses. As such,

it is similar to the "farm" in Bob White Packing Co. v. Hardy, 340 S.W.2d 245

(Ky. 1960). There, a worker mowing hay on a farm owned by a meat packing

plant was injured. Despite what appeared to be a clear agriculture act, the

worker was found not to be excluded by the agriculture exception because the

primary purpose of the business owner was operating a slaughterhouse, not a

hay farm. The court found that the farming was incidental to the

slaughterhouse business, because the business used the farm and its products




                                       5
as a holding place for animals going to slaughter. Therefore, the worker was

not exempt and could file a workers' compensation claim.

      At first blush, Bob White Packing appears to be nearly identical to the

alignment in the present case. The primary business of Wild Rose is providing

riding lessons, a non-agriculture business, as was the meat packing plant. But

Wild Rose also is a boarding and training stable that continues the

development of the agriculture product itself, horses, which would be exempt

standing alone. Applying the rule in Bob White Packing, it must be determined

whether the horse maintenance and training is "an integral part" of the non-

agriculture business, the giving of riding lessons.

      It is not clear here that the boarding and training of boarded horses (a

normally agricultural act the same as mowing hay) actually supported or was

integral to the primary business of giving riding lessons. In fact, because

Hanawalt was actually training a horse for an individual owner who wanted to

ready the horse for potential racing, the available proof indicates that horse

maintenance and training was a separate business venture, although done

under the same name as the riding lessons business.

      Thus, if the maintenance and training of horses cannot be shown to be

integral to the non-agriculture business as it was in Bob White Packing, then it

must be examined standing alone, regardless of whether the primary business

is agricultural only. When the work performed by Wendy Hanawalt is viewed in

that light, she is an agricultural worker by definition and is therefore exempt

from workers' compensation coverage. But if her work had been found to be



                                         6
integral to the work done by the non-agriculture business, then she would not

have been exempt, regardless of how agricultural her work appeared.

      It is not unusual for businesses to perform work that might cross

definitional lines. But the test of first establishing what the business's primary

function is, followed by determining if otherwise exempt work is nonetheless

exempt because it is integral to the non-agriculture business, is not overly

burdensome and is highly fact specific.

      The difficulty here is that applying the rule in Bob White Packing in this

case results in a different result than the conclusion in Bob White Packing.

There, the worker was not exempt (mowing hay), but here she is (boarding and

training horses). Nonetheless, the rule has been applied in both cases, and the

opposite results are correct based on the facts of each case.

      Consequently, I join the majority opinion.

      Wright, J. joins.




                                          7
COUNSEL FOR APPELLANT,
WENDY HANAWALT:

Larry Duane Ashlock


COUNSEL FOR APPELLEE,
J. THOMAS BROWN, D/B/A
WILD ROSE EQUESTRIAN CENTER
AND KAREN BROWN, D/B/A
WILD ROSE EQUESTRIAN CENTER:

Thomas E. Cooper


COUNSEL FOR APPELLEE,
UNINSURED EMPLOYERS' FUND:

Charles Davis Batson




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