Opinion
NO. 2019-CA-001376-WC
04-10-2020
BROWNWOOD PROPERTY, LLC APPELLANT v. SHEENA THORNTON; HON. JEFF V. LAYSON III, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD; AND UNINSURED EMPLOYERS' FUND APPELLEES
BRIEF FOR APPELLANT BROWNWOOD PROPERTY, LLC: Thomas W. Miller Susan Y. W. Chun Lexington, Kentucky BRIEF FOR APPELLEE SHEENA THORNTON: Charles W. Gorham Lexington, Kentucky BRIEF FOR APPELLEE UNINSURED EMPLOYERS' FUND: Paul D. Adams Frankfort, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-18-92452 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES. CLAYTON, CHIEF JUDGE: Brownwood Property, LLC, petitions for review of an opinion of the Workers' Compensation Board. Sheena Thornton, an employee of Brownwood, sought workers' compensation benefits for a work-related injury to her foot. The administrative law judge (ALJ) held that Brownwood and Thornton were not subject to the Workers' Compensation Act under the statutory exemptions for entities and individuals engaged in agriculture. See Kentucky Revised Statutes (KRS) 342.630(1) and 342.650(5). The Board reversed, holding that the evidence compelled a finding that Thornton was a person not employed in agriculture and consequently the parties were subject to the provisions of the Act. Having reviewed the record and the applicable law, we affirm the opinion of the Board.
The following statement of the underlying facts is based on the summaries of the evidence set forth in the opinions of the ALJ and the Board:
At the time of the final hearing, Thornton was thirty-six years of age. She does not have any formal education or training beyond the eighth grade. She was previously employed as a maintenance person for a convenience store/gas station.
In December 2016, Thornton's husband was hired as a general laborer by Brownwood to work on a farm it had recently purchased in Jessamine County. As part of his compensation, the couple was allowed to live rent-free in a house located on the farm. The entire property was in a state of disrepair and Brownwood was refurbishing the premises in order to operate them as a horse farm and to raise cattle. The property was zoned for agricultural use and was also subject to a conservation easement which restricted its use to agriculture only. At the time of the purchase, there were no horses or other livestock on the farm nor were any crops being grown, with the exception of some hay.
In addition to the main residence, there were several (approximately six or seven) guest houses and barns on the property. Tom Biederman, the real estate broker who handled the purchase of the farm, was retained by Brownwood to act as a consultant during the process of refurbishing the property. In June 2017, Biederman hired Thornton to clean and maintain some of these structures and to mow certain areas of the property using a zero-turn mower.
Thornton's specific tasks included regularly cleaning a guest house, which was being remodeled and which the owner of Brownwood stayed in during his visits to the farm, as well as cleaning the other guest houses which were also being remodeled, the tack rooms in some of the barns, and the farm office. She also emptied the humidifiers in the guest house and the main residence. She mowed the lawns and areas around the houses, the roadways, and the fence lines. She did not mow any fields or paddocks. She estimated that her work consisted of 75 percent cleaning and 25 percent mowing. Biederman testified that Thornton spent 70 to 80 percent of her time mowing and 20 to 30 percent cleaning.
On July 17, 2017, after Thornton and the farm manager finished cleaning the basement of one of the guest houses, they traveled in the manager's truck to the maintenance shop at the back of the farm. When they arrived, Thornton stepped out of the truck onto a rock and severely injured her right foot. She suffered various complications which eventually resulted in her foot and part of her leg being amputated.
When Thornton sought workers' compensation benefits, Brownwood argued that it was a business engaged solely in agriculture and therefore not subject to the Workers' Compensation Act under KRS 342.630(1), and/or Thornton was exempt from coverage as a person employed in agriculture under KRS 342.650(5).
The action was bifurcated to address the applicability of these agricultural exemptions to the facts of the case. Upon reviewing the evidence, the ALJ concluded that Brownwood was "solely engaged in agriculture" as contemplated by KRS 342.630(1), based on the following findings:
The unrebutted evidence in this case confirms that Brownwood purchased the property in Jessamine County for no other purpose than operating a thoroughbred horse farm. In fact, when it bought the farm, Brownwood was aware of the conservation easement which prohibited use of the property for any other purpose besides farming. The fact that there were no livestock or crops actually being raised on the farm at the specific time which Ms. Thornton was injured was because the farm was in very poor condition when it was purchased and needed to be rehabilitated so that Brownwood could carry out its
intended purpose. This included such activities as cleaning the various structures and mowing the grass.
The ALJ further found that Thornton was a "person employed in agriculture" as contemplated by KRS 342.650(5) because her activities qualified as "work performed as an incident to or in conjunction with the farm operations" and dismissed her claims.
Upon review, the Board agreed with the ALJ that Brownwood was engaged solely in agriculture at the time of the injury but reversed the ALJ's determination that Thornton was employed in agriculture. It held as a matter of law that the exemption should be construed according to the character of the work regularly performed by Thornton, not according to the nature of Brownwood's business. The Board characterized Thornton as a domestic employee who engaged primarily in tasks not typically associated with an agricultural undertaking. This petition for review by Brownwood followed.
Upon review, we "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." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
Pursuant to KRS 342.630(1), an employer "engaged solely in agriculture" does not have to comply with the provisions of the Workers' Compensation Act. Homestead Family Farm v. Perry, 506 S.W.3d 325, 326-27 (Ky. App. 2016). Similarly, KRS 342.650(5) provides that a "person employed in agriculture" is not covered by the Act. Id. The term "agriculture"
means the operation of farm premises, including the planting, cultivation, producing, growing, harvesting, and preparation for market of agricultural or horticultural commodities thereon, the raising of livestock for food products and for racing purposes, and poultry thereon, and any work performed as an incident to or in conjunction with the farm operations, including the sale of produce at on-site markets and the processing of produce for sale at on-site markets. It shall not include the commercial processing, packing, drying, storing, or canning of such commodities for market, or making cheese or butter or other dairy products for market[.]KRS 342.0011(18).
Brownwood argues that any employees of an entity engaged solely in agriculture are automatically exempted from workers' compensation coverage because, by definition, they also are engaged in agriculture. The Uninsured Employers' Fund (UEF) similarly contends that the determination by the ALJ which was upheld by the Board that Brownwood was an entity "solely engaged in agriculture" was dispositive of the question of coverage, and it was superfluous to consider separately whether Thornton was a person employed in agriculture.
According to Brownwood, the Board's holding is based in part on a misinterpretation of Bob White Packing Co. v. Hardy, 340 S.W.2d 245 (Ky. 1960). In that case, the employer, a meat-packing company, was unquestionably non-agricultural. The company's employee was injured after he was directed to mow hay, a typically agricultural activity, for the purpose of feeding cattle who were being held for slaughter. The Court determined that the employee was not excluded from coverage because, although he was performing a service which is normally considered to be agricultural, it was in furtherance of a business which was not. Id. at 247-48. The Court quoted with approval from an opinion of the Supreme Court of Nebraska which states: "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." Id. at 247 (citations omitted). Brownwood insists that this equation cannot be inverted, as it was by the Board in this case, to apply to a worker performing non-agricultural tasks for an agricultural employer.
But Brownwood's interpretation of KRS 342.630(1) and Bob White conflicts with the holding of Commonwealth, Uninsured Employers' Fund v. Gussler, 278 S.W.3d 153 (Ky. App. 2008). Gussler was hired by a farmer to cut timber on his farm and haul it away for sale. He was injured by a falling branch during the course of his employment. The farmer and the UEF argued that Gussler's injury was excluded from coverage under the Act's agricultural exemptions. This Court disagreed, ruling that Gussler's logging work did not meet the definition of "agriculture" as defined in KRS 342.0011(18). "[W]e cannot find that the legislature intended the definition of 'agriculture' under KRS 342.0011(18) to be so wide-ranging as to encompass the harvesting of trees by a farmer in every situation regardless of the circumstances." Id. at 158. "Although it occurred on a farm, it is clearly evident from the testimony of all parties that the logging was not connected to the day to day operations of the farm itself." Id. at 157. "[T]he timber was cut specifically to be sold at market, and was entirely distinct and separate from any farming activity in which [the farmer] might have been engaged." Id.
Thus, under Gussler, the Act does not automatically exclude from coverage the non-agricultural employee of an agricultural employer. As the Board stated, "[t]he fact Brownwood was solely engaged in agriculture, does not mandate a finding Thornton's work was primarily agricultural and is excluded from coverage by the Act." The Board instead cited Larson's Workers' Compensation § 53, which states "[t]he exemption of farm labor is construed according to the character of the work regularly performed by the employee, not according to the nature of the employer's business."
In its examination of the nature of Thornton's employment, the Board stated in part as follows:
Despite the fact that operating the zero-turn mowers around the fencerows could be construed as an agricultural function, Thornton was primarily hired to clean houses and the tack room and mow seven lawns, the lanes, and the entrance to the farm. Moreover, she had no experience working with horses or harvesting
crops. . . . The evidence demonstrates she was hired as a domestic employee to perform maintenance and occasionally engage in what could be an agricultural activity, i.e. mowing around the fencerows.
The Board characterized Thornton's work as strictly maintenance and not related to the day-to-day operations of the agricultural undertaking. It concluded that the evidence in the record compelled a finding that she was a person not employed in agriculture.
Brownwood argues that Thornton's job duties, although not typically "agricultural," were indeed incident to and necessary to achieving the goal of a fully functional farm and furthering the agricultural enterprise. Brownwood acknowledges Thornton mowed primarily the yards of the houses, the lanes, and the entrance to the farm, but contends it was for the sole purpose of bringing the property into shape so it could be operated as a farm.
Any employee's efforts will to some degree further the employer's interests. Under Brownwood's reasoning, however, an accountant employed by Brownwood would also be an agricultural employee because the accountant's duties ultimately furthered the agricultural enterprise. We agree with the Board that the evidence shows that Thornton was hired in a non-agricultural capacity and her tasks consisted of activities not normally associated with agriculture.
For the foregoing reasons, the opinion of the Board is affirmed.
COMBS, JUDGE, CONCURS.
CALDWELL, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
CALDWELL, JUDGE, DISSENTING: I respectfully dissent. The role of this Court on review of a decision of the Workers' Compensation Board 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." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). I would conclude that the Board and the majority, in fact, have misconstrued controlling statutes and precedent.
While I do not support the proposition that employees of an entity solely engaged in agriculture are automatically exempt from workers' compensation coverage because their employer is only engaged in agriculture, I do think that exception is very narrow. As the majority asserts, an accountant, working only as an accountant, for an agricultural enterprise would not by default be an agricultural worker. However, there are multiple tasks that are routinely performed in agriculture that are not only as an incident to or in conjunction with a farm operation, but are necessary to the essential function of the farm. These are tasks that also could easily be described as "non-agricultural" when performed elsewhere or in other employment.
The majority cites to the case of Homestead Family Farm v. Perry, 506 S.W.3d 325 (Ky. App. 2016) to reference the controlling statutes but then does not reference it for further analysis. This case is directly on point and should be controlling here. In Homestead, like the case before us, you have an employer engaged solely in agriculture. In Homestead the employee is engaged in an activity, a truck driver picking up a commodity from one location and hauling and unloading it to be stored in another, that could easily be described as an activity not normally associated with agriculture. Id at 327.
Thornton, the employee in this action, had duties which included cleaning the guesthouse and tack room, and mowing yards, lanes, and the farm entrance. While Thornton's job duties are such that they can be associated with working for a commercial lawn service or "Molly Maid" type business, they are also essential to the operation of a farm. Many commercial enterprises maintain their landscape and keep their offices and lobbies clean but generally for appearance and aesthetics. As correctly stated by the Appellee, the duties Thornton was employed to perform are clearly "incident" to a fully functioning farm. Given the nature of farming, which typically involves early morning and late-night care and feeding of animals and attention to crops, safely navigable yards, lanes, and entries are necessary. If houses on a farm are meant for habitation by the farmworkers (such as in this case where the workers live on the farm), then they must be maintained and mowed. So too, the lanes and fencerows. Workers, livestock, equipment, and vehicles cannot use them if they are not maintained and mowed. Barns and tack rooms cannot be safely accessed and utilized in agricultural pursuit if not cleaned and maintained. To find that Thornton's cleaning, mowing, and maintenance was distinct and separate from any farming activity is to ignore what is necessary and integral to the function of a farm.
The Board in its opinion relies heavily on the case of Bob White Packing Co. v. Hardy, 340 S.W.2d 245 (Ky. 1960), which is clearly distinguishable from this action. In Bob White, supra, you have an employee who was injured while mowing hay, an activity often considered agricultural work. However, in mowing the hay, he was in the employ of and advancing the interests of the packing company. In the case herein, Thornton was employed by an entity who is solely engaged in agriculture as contemplated by KRS 342.630(1) and performing activities that are incident to or in conjunction with farm operations.
Commonwealth, Uninsured Employers' Fund, v. Gussler, 278 S.W.3d 153 (Ky. App. 2008) wherein the employee, while hired by a farmer, was engaged in cutting timber to be specifically sold at market, and not clearing timber in furtherance of an agricultural endeavor, is also distinguishable. In this action Thornton was not cleaning and mowing for some other commercial activity, like renting out the farm houses, but was cleaning and mowing in furtherance of the agricultural endeavor of her agricultural employer.
In Homestead Family Farm, 506 S.W.3d at 329, the Court cites to the holding in Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44, 45 (Ky. App. 1978). "[I]t was not just the nature of the work which the employee was doing at the time of the injury that determined coverage, but that the whole character of the employment should be considered in determining whether a person was employed in agriculture." Id. at 46. When considering not just the nature of the work Thornton was doing at the time of her injury but the whole character of her employment, she is a "person employed in agriculture" as stated in KRS 342.650(5). BRIEF FOR APPELLANT
BROWNWOOD PROPERTY, LLC: Thomas W. Miller
Susan Y. W. Chun
Lexington, Kentucky BRIEF FOR APPELLEE SHEENA
THORNTON: Charles W. Gorham
Lexington, Kentucky BRIEF FOR APPELLEE
UNINSURED EMPLOYERS' FUND: Paul D. Adams
Frankfort, Kentucky