Opinion
CLAIM NO. E404915
OPINION FILED JULY 18, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FREDERICK S. "RICK" SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondent represented by the HONORABLE TOM THOMPSON, Attorney at Law, Batesville, Arkansas and the HONORABLE GRAY DELLINGER, Attorney at Law, Melbourne, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on September 9, 1996. In that opinion and order, the administrative law judge found that the respondent, who is uninsured, was an agricultural enterprise and was therefore exempt from coverage by the Workers' Compensation Act. In addition, the administrative law judge found that even if the agricultural farm labor exemption did not apply, the respondent did not have sufficient employees to constitute employment as defined by the Workers' Compensation Act. After conducting a de novo review of the record, we find that the administrative law judge's decision must be reversed.
The claimant alleges that she suffered a job-related injury to her low back on or about April 21, 1993. At the time of this alleged injury, the claimant was employed by Hutchins Greenhouse Nursery, a business located in Melbourne, Arkansas. The claimant testified that she injured her back while attempting to load a tree into the back of a truck for a customer. There were no witnesses to this accident and the claimant did not immediately notify her employer of the incident.
The respondent contends that the claimant did not suffer a job-related injury. Alternatively, the respondent asserts the affirmative defenses of notice and Statute of Limitation. The respondent further contends that it is an agricultural enterprise and that the claimant is not a covered employee for workers' compensation purposes, and that the business did not regularly employ three or more persons. Thus, the only issues submitted for consideration involve the compensability of the claimant's injury.
With regard to the respondent's assertion of the Statute of Limitations defense, this is an affirmative defense, and the burden is on the respondent to establish that the claimant did not file a claim in a timely fashion. The applicable statute is set out in Ark. Code Ann. § 11-9-702(a)(1), which provides that a claim for compensation for disability on an account of an injury must be filed with the Commission within two years from the date of the injury. In this case, the claimant has alleged an injury occurring in April 1993. In addition, the Commission records reflect that a claim was filed by the claimant with the Commission on May 5, 1994. Therefore, we find that the present claim was filed in a timely manner, and that the respondent's assertion of the Statute of Limitation defense is without merit.
The respondent has also alleged the defense of notice. That defense is set out in Ark. Code Ann. § 11-9-701. In essence, an employer is not liable for any benefits accrued by the claimant prior to the time the respondent is given notice of the injury. The claimant in this case admits that she did not immediately notify the respondent of her injury. However, Loretta Vaughn, the claimant's mother-in-law, and Joseph Vaughn, the claimant's husband, both testified that they personally advised Gene Hutchins, the owner of the respondent employer, within two weeks of the date of the injury.
At the hearing, Mr. Hutchins testified that he could not recall having any such conversations with either witness. He also stated that he was not aware that the claimant had suffered any injury while in his employ until approximately two years after the alleged incident. However, under cross-examination, Mr. Hutchins admitted that he did speak with the claimant's mother-in-law a few days after her alleged injury and further admitted that he was told that she was seeing a chiropractor. Mr. Hutchins then stated that he could not recall if he had been advised that the claimant was seeing a chiropractor as a result of a job-related injury. After further cross-examination, Mr. Hutchins also admitted that he was notified in writing of the claimant's injury within two months of her injury date.
Since the respondent is asserting this defense, the burden is on the respondent to establish its applicability. In this regard, we find that Mr. Hutchins' testimony was not reliable. He frequently became confused on dates and made several inconsistent statements as to when he knew of the claimant's alleged injury. We find that the testimony from Loretta Vaughn was more credible in this regard, and we find that the respondent was advised of the claimant's injury two weeks after April 21, 1993. Therefore, we find that the failure of the claimant to advise the respondent until that time precludes her from receiving any benefits only during that two-week period.
The administrative law judge also held that the respondent, who was uninsured, did not have the requisite number of employees to constitute employment as defined by the Arkansas Workers' Compensation Act. The term employee is defined in Ark. Code Ann. § 11-9-102(2), as any person employed in the service of an employer under any contract of hire or apprenticeship written or oral, expressed or implied, but excluding one whose employment is casual and not in the course of the trade, business, profession, or occupation of his employer. Ark. Code Ann. § 11-9-102(3) defines employment as every employment in the state in which three or more employees are regularly employed by the same employer in the course of business.
In the present case, Mr. Hutchins initially testified that he did not have three employees at the time of the claimant's injury. However, he later testified that he was not sure how many employees were working for him on the date in question. Likewise, the respondent's bookkeeper, Ms. Judy Moser, also testified that she was uncertain as to how many people had been employed by the respondent. However, she did indicate that there were employees working for the respondent other than the claimant.
In our opinion, the testimony of the claimant and the other three witnesses called by her clearly established that, at the time of her injury, there were at least three other persons who were regularly employed in the respondent's business. These persons consisted of the claimant, as well as Nanette Miller, who assisted the claimant in the sale of the plants and other activities involved in the operation of the nursery, and Ron Miller, who delivered plants, unloaded delivery trucks, did occasional landscaping, and similar activities. Another individual named Harry Anderson also worked at the business performing light maintenance tasks such as tree trimming, grass cutting, and similar activities.
The respondent's position seemed to be based upon a misunderstanding as to the difference between a casual employee and a part-time employee. While there is no doubt that the respondent's business was somewhat seasonal in nature and that the aforementioned employees, including the claimant, were not always guaranteed a set work week, they were all regularly employed in the course of the business. A casual employee is one whose employment is not full time and is not in the course of the employer's business. Meek v. Brooks, 237 Ark. 717, 375 S.W.2d 671 (1964). We find that even if these employees were part-time or temporary in nature, they were clearly acting in the course of the claimant's business, and accordingly, could not have been casual employees.
The fact that the claimant's business was seasonal in nature, and that it may not have always had the requisite number of employees, also does not exempt the respondent's business from coverage. The Arkansas Supreme Court has held on several occasions that when a business regularly employs the requisite number of employees, the Workers' Compensation Act does apply even though, from time to time, the number of the employees in the business may drop below the minimum number. Wallace v. Wells, 221 Ark. 750, 255 S.W.2d 970 (1953), Meek v. Brooks, supra, andStewart v. Cosby-Parsons Quarterhorse Ranch, 269 Ark. 866, 601 S.W.2d 590 (Ark.App. 1980).
In short, the preponderance of the credible evidence clearly establishes that the respondent had at least four persons employed in the course of its business at the time of the claimant's injury. We therefore find that the administrative law judge's decision that the respondent did not have sufficient employees for the Workers' Compensation Act to apply must be reversed.
A more difficult issue is presented when the question of the agricultural exemption is considered. Agricultural farm labor is specifically exempted from the definition of employment set out in Ark. Code Ann. § 11-9-102(3)(A)(iii). In this case, the testimony established that a portion of the respondent's business did involve the raising of seedlings or bulbs to maturity for retail sale to the general public. However, it was also established that a portion of the respondent's business involved the wholesale purchase of plants already grown for retail sale to the public, and a portion of the respondent's business also apparently involved the retail sale of items and implements related to home gardening and landscaping. Also, the claimant testified that the business, from time to time, performed landscaping activity for private individuals and that some of these tasks were carried out by Mr. Hutchins. In his testimony, Mr. Hutchins initially denied that he engaged in such activity. He stated that Mr. Miller would perform home landscaping, but that the only connection the respondent had with such activity was the sale of the plants to Mr. Miller. However, Mr. Hutchins later stated that he would, from time to time, use a backhoe to dig holes on the property of customers who had purchased trees and other large plants. Moreover, we note that the retail sale of plants grown by third parties, and the sale of gardening and landscaping supplies, as well as doing landscaping activities are clearly not agricultural farm labor. Consequently, a business primarily engaging in these activities should not be entitled to take advantage of the agricultural exemption.
In assessing the respondent's argument that the corporation engaged primarily in agricultural activities, we note what appears to be a serious lack of business records maintained by the respondent. During the course of the hearing, there was considerable discussion regarding certain bank records that the employer had obtained but had not tendered to the claimant in spite of the claimant's previous request for production of documents and interrogatories requesting such records. Additionally, during his testimony, Mr. Hutchins frequently referred to his lack of business records and his inability to keep track of his business affairs. His bookkeeper, Judy Moser, likewise emphasized the poor record keeping practices of Mr. Hutchins. Moreover, unlike the employer in Gwin v. J. T. Vestal and Sons, 205 Ark. 742, 170 S.W.2d 598 (1943), we find that the preponderance of the credible evidence in the present case establishes that the respondent in the present case engaged primarily in retail sales, and not in agricultural operations. In reaching that decision, we note that the claimant and at least one other employee worked predominately in sales, that these individuals were selling equipment and supplies in addition to plants, and that a portion of the plants sold by the respondent were purchased wholesale from third-party suppliers. We therefore find that the respondent failed to establish that its primary business function is agricultural in nature, and we find that the administrative law judge's decision that the employer's business is exempt from coverage by the Workers' Compensation Act must be reversed.
The final issue in this case is whether or not the claimant did in fact sustain a compensable injury. The only testimony presented regarding the event was that of the claimant, Jo Ann Vaughn. The claimant stated that when she was loading a tree purchased by a customer into the back of the customer's truck, she had felt a pop in her back. The claimant testified that since this incident occurred near the end of the work day, she finished her shift but when she returned to work the next day, her back began causing her significant problems. The claimant testified that because of the severe pain she had to call Loretta Vaughn, her mother-in-law, to pick her up from work and transport her home. The claimant's testimony in this regard was corroborated by both Ms. Vaughn, as well as her other witnesses.
The claimant was apparently first seen for treatment of this condition at the Calico Rock Medical Center on April 27, 1993. The emergency room notes taken on that date indicate that the claimant stated her injury resulted from lifting a tree. On May 2, and May 25, 1993, the claimant sought treatment from the emergency room at the White River Medical Center. The emergency room notes on each of those dates likewise reflect that the claimant advised emergency room personnel that she had injured her back while lifting a tree at work. In fact, all of the medical records contained in the record relating to the claimant's injury consistently reflect that the claimant advised her medical providers that her injury occurred while lifting a tree at work. Moreover, we find that the claimant was a credible witness and that her testimony, as corroborated by the testimony of Ms. Loretta Vaughn and Joseph Vaughn, and as corroborated by nearly concurrent physician reports, establish the occurrence of a compensable injury occurring in the course of her employment with the respondent. Not only was the history that the claimant gave to her treating physicians consistent, the type of injury she suffered is in accordance with the type of accident described by the claimant.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that she sustained a compensable injury on or about April 21, 1993. In addition, we find that the present claim is not barred under the provisions of Ark. Code Ann. § 11-9-702(a)(1), or under the provisions of Ark. Code Ann. § 11-9-102(3). Consequently, we find that the decision of the administrative law judge must be, and hereby is, reversed. We also find that the claimant did not provide notice to the respondent of her injury for two weeks after April 21, 1993, and accordingly, she is not entitled to any benefits during that period.
The claimant's attorney is awarded an attorney's fee in the amount of $250.00 for prevailing on this appeal as provided by Ark. Code Ann. § 11-9-715.
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that respondent employed at least four persons in the course of its business at the time of the claimant's injury which thus brought respondent within the jurisdiction of the Workers' Compensation Act and finding that respondent was not engaged in agricultural labor. Based upon my de novo review of the entire record, I find that claimant has failed to prove that this Commission has jurisdiction over the respondent.
In my opinion, the testimony of the claimant and claimant's witnesses is somewhat vague with regard to the number of employees respondent employed at any given time. Obviously, claimant was the only regular employee employed by respondent during 1993. It is conceivable that Nanette Miller was also a regular employee however, I cannot find that there is sufficient evidence in the record to establish this fact by a preponderance of the evidence. The evidence reveals that Mrs. Miller worked sometimes during the potting season. However, by April of 1993 when claimant sustained her injury respondent was no longer in the potting season and thus respondent would not require Ms. Miller's services. There is no evidence, as found by the majority, that Mrs. Miller actually assisted in the sale of any plants.
With regard to Mrs. Miller's husband, Ron Miller, it is clear that Mr. Miller was an independent contractor, and not an employee. Mr. Miller performed landscaping services for individuals. Mr. Miller would purchase his plants for his landscaping business from respondent. Mr. Miller would use his own tools and equipment and, on occasion trim plants for respondent when he was not otherwise engaged in his own personal business. Both claimant and Eugene Vaughn, the sole proprietor of respondent, testified that Mr. Miller used his own equipment and only worked on rare occasions. Thus, I cannot find that Mr. Miller was an employee of respondent.
Finally, there is no evidence in the record that Harry Anderson was a regular employee of respondent, as opposed to a casual employee. Mr. Anderson was described by Mr. Hutchins as being a person who is mentally disabled who would come to respondent seeking occasional work to earn cigarette money. According to Mr. Hutchins' testimony, Mr. Anderson would visit respondent's place of business on many occasions but that he did not necessarily work for respondent on each occasion that he was present at the facility. Although claimant tried to classify Mr. Anderson as an employee, her testimony is somewhat consistent with Mr. Hutchins' in that the only work she described Mr. Anderson as doing was to sometimes unload trucks and to help Mr. Hutchins move.
Ark. Code Ann. § 11-9-102 (1987) defines the term employee as:
Any person, including a minor, whether lawfully or unlawfully employed in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied, but excluding one whose employment is casual and not in the course of the trade, business, profession, or occupation of his employer.
In my opinion, Mr. Anderson is merely a casual employee of respondent. This definition also excludes from the definition of "employee" the sole proprietor unless the proprietor elects to be included within the definition of the term employee. There is no evidence that Mr. Hutchins, the sole proprietor of respondent, ever elected to be included within the definition of employee. Thus, as I review the evidence presented, I can only find that respondent employed no more than two employees, claimant and Nanette Miller. Since respondent did not employ more than three regularly employed employees in the course of its business, I find that respondent is not subject to the jurisdiction of this Commission. Furthermore, since I find that respondent is not subject to the jurisdiction of this Commission, I find it unnecessary to address whether respondent was engaged in agricultural farm labor to exempt it from our jurisdiction. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner