                                                                            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

      Court of Appeals of Indiana | Opinion 93A02-1702-EX-386 | July 27, 2017                   Page 1 of 9
      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




      Court of Appeals of Indiana | Opinion 93A02-1702-EX-386 | July 27, 2017   Page 3 of 9
      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).

      Court of Appeals of Indiana | Opinion 93A02-1702-EX-386 | July 27, 2017                              Page 4 of 9
      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

      Court of Appeals of Indiana | Opinion 93A02-1702-EX-386 | July 27, 2017   Page 5 of 9
       (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).




       Court of Appeals of Indiana | Opinion 93A02-1702-EX-386 | July 27, 2017     Page 6 of 9
[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

       Court of Appeals of Indiana | Opinion 93A02-1702-EX-386 | July 27, 2017     Page 7 of 9
               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

       Court of Appeals of Indiana | Opinion 93A02-1702-EX-386 | July 27, 2017   Page 8 of 9
       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.

       Court of Appeals of Indiana | Opinion 93A02-1702-EX-386 | July 27, 2017                          Page 9 of 9
