Jimmy Dean Austin v. Jon Templin (mem. dec.)

      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                      FILED
      this Memorandum Decision shall not be                                  Oct 18 2017, 11:27 am
      regarded as precedent or cited before any                                   CLERK
      court except for the purpose of establishing                            Indiana Supreme Court
                                                                                 Court of Appeals
      the defense of res judicata, collateral                                      and Tax Court


      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Elliot L. McKinnis                                       Mark X. Sullivan
      Withered Burns, LLP                                      Treacy & Sullivan
      Lafayette, IN                                            Lebanon, IN



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jimmy Dean Austin,                                       October 18, 2017
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               93A02-1705-EX-01187
              v.                                               Appeal from the Indiana Worker’s
                                                               Compensation Board
      Jon Templin,                                             The Honorable Linda P. Hamilton,
      Appellee-Defendant                                       Chairperson
                                                               Board Application No.
                                                               C-230690



      Vaidik, Chief Judge.



                                          Case Summary
[1]   Jimmy Dean Austin appeals the Indiana Worker’s Compensation Board’s

      (“Board”) denial of his claim. Austin was injured while working on a farm.
      Court of Appeals of Indiana | Memorandum Decision 93A02-1705-EX-01187 | October 18, 2017        Page 1 of 9
      After conducting a hearing, the Board concluded that Austin was not entitled to

      receive worker’s compensation benefits because he qualified as a farm or

      agricultural employee under Indiana’s Worker’s Compensation Act. Austin

      contends that the Board erred in reaching its decision because, despite working

      on a farm, he primarily drove a semi-truck. Austin argues that he was a

      commercial laborer and not a farm employee and that he was therefore eligible

      for worker’s compensation benefits. Based on the whole character of Austin’s

      employment, we affirm the Board’s conclusion.



                            Facts and Procedural History
[2]   In September 2014, Jon Templin hired Austin to work on his family’s farm in

      Bringhurst. Austin was employed as a full-time “farm hand.” Tr. p. 30. He

      was tasked with a variety of jobs around the farm: use a semi-truck to transport

      harvested grain from the field to on-site storage and deliver grain to nearby

      commercial plants, feed livestock, load livestock onto trailers for transport,

      wash windows, blow out air filters, operate a grain buggy, build a fence, erect a

      new wall inside the barn, and build a pen for calves and a chicken coop. Id. at

      30-33. In other words, Austin “did everything except [operate the] combine.”

      Id. at 21.


[3]   Templin owned three semi-trucks that were used for hauling grain. The semi-

      trucks were licensed for farm use only, meaning they could not be used to

      deliver goods to the farm, nor could they be used by other local farms. The

      semi-trucks could be used only for Templin’s farm to haul harvested grain to

      Court of Appeals of Indiana | Memorandum Decision 93A02-1705-EX-01187 | October 18, 2017   Page 2 of 9
      either on-site storage or off-site commercial plants. Because it was harvest time

      when Austin was hired, his primary work assignment was driving one of the

      semi-trucks. Austin did not have a commercial driver’s license (CDL), and he

      was hired to work exclusively for Templin. Having someone drive the semi-

      trucks was “an absolute necessity” because it was how Templin moved the

      crops from the field to on-site storage and from storage to commercial plants.

      Id. at 24-25, 50-51.


[4]   When Austin loaded or unloaded a semi-truck with grain, he was responsible

      for ensuring that the machinery used did not malfunction. On the morning of

      December 10, 2014, Austin was loading grain from one of the on-site storage

      bins into one of Templin’s semi-trucks. The grain was to be delivered to a

      commercial plant down the road. It took approximately forty to forty-five

      minutes for the grain to be loaded, so Austin stayed inside the truck’s cab to

      keep warm. Near the end of the load time, Austin noticed that the machinery

      was malfunctioning and stepped out of the cab to turn it off. As Austin exited

      the cab, his foot slipped and he fell to the ground, but his left arm “stayed up in

      the side rail of the truck.” Id. at 45. Austin suffered injuries to his “left upper

      extremity.” Appellant’s App. Vol. II p. 11.


[5]   In June 2015, Austin filed an Application for Adjustment of Claim with the

      Board. In the application, Austin stated that he was “injured during the scope

      of his employment” with Templin. Id. He described the injury as a twisting of

      his arm while exiting the cab of the semi-truck.



      Court of Appeals of Indiana | Memorandum Decision 93A02-1705-EX-01187 | October 18, 2017   Page 3 of 9
[6]   A hearing was held in September 2016 before a single member of the Board to

      determine if Austin was a farm or agricultural employee when working for

      Templin. Under Indiana Code section 22-3-2-9, farm and agricultural

      employees are generally excluded from receiving worker’s compensation

      benefits. After the hearing, the Board member entered written findings of fact

      and conclusions. In relevant part, the member found:


              3. On September 18, 2014, Plaintiff was hired by Defendant as a
              general laborer at Defendant’s farm and worked in that capacity
              on a continuous, full-time basis until December 18, 2014.


                                                   *****


              5. During the three-month period Plaintiff was employed by
              Defendant, he performed a variety of farm-related tasks,
              including the feeding of livestock; the disking [of] farm ground;
              operating a grain buggy in the field during harvest; driving
              Defendant’s tractor-trailer trucks to haul harvested crops from the
              field; the loading of harvested grain from Defendant’s tractor-
              trailers into Defendant’s storage bins; and the transport of
              Defendant’s grain to local dealers for sale.


                                                   *****


              19. Defendant’s tractor-trailer trucks are a critical component
              of the harvesting process because without them Defendant’s
              harvested crops could not be transported from the field to the
              storage bins for drying and then to a dealer for sale.


              20. Having his own tractor-trailer trucks is viewed by
              Defendant as a necessity during harvest time because of the


      Court of Appeals of Indiana | Memorandum Decision 93A02-1705-EX-01187 | October 18, 2017   Page 4 of 9
              competition with other farmers who are also, at the same time,
              transporting harvested crops from the field.


              21. Plaintiff did not have a commercial driver’s license on the
              date of the incident and has never been a commercial driver by
              trade or occupation.


              22. Driving Defendant’s tractor-trailer trucks was just one of
              the tasks Plaintiff performed for Defendant in connection with
              his work at Defendant’s farm.


              23. There would be no reason for Defendant to plant, raise
              and harvest a crop unless he had the means to transport the
              harvested crop from the field and, eventually, to a dealer for
              sale.


      Id. at 8-9. The Board member ultimately concluded, “The farm exemption set

      forth in Indiana Code § 22-3-2-9 is applicable to this case and exempts Plaintiff

      from coverage under the Act for his accidental injury.” Id. at 9. Austin then

      sought review of the decision by the full Board. In April 2017, after hearing

      arguments from both sides, the Board adopted the single member’s decision.


[7]   Austin now appeals.



                                 Discussion and Decision
[8]   Austin argues that the Board incorrectly classified him as a farm employee

      when he was working for Templin. Our standard for reviewing decisions by the

      Board is well established:



      Court of Appeals of Indiana | Memorandum Decision 93A02-1705-EX-01187 | October 18, 2017   Page 5 of 9
              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.


      O’Keefe v. Top Notch Farms, 79 N.E.3d 1000, 1003 (Ind. Ct. App. 2017).


[9]   Austin does not dispute the Board’s findings of fact but challenges its

      conclusion that he was a farm employee instead of a commercial laborer.

      Again, Indiana law generally excludes farm and agricultural employees from

      receiving benefits under Indiana’s Worker’s Compensation Act. See Ind. Code

      § 22-3-2-9(a)(2). “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 livestock or poultry.” Id.

      “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.”

      O’Keefe, 79 N.E.3d at 1003 (internal quotations omitted) (emphasis added).

      Court of Appeals of Indiana | Memorandum Decision 93A02-1705-EX-01187 | October 18, 2017   Page 6 of 9
[10]   Austin claims that he was “a truck driver 80% of the time” and therefore must

       be classified as a commercial laborer and not a farm employee. Id. at 12; Tr.

       Vol. II p. 50. This argument is flawed for two reasons. First, Austin did not

       possess a CDL nor were Templin’s trucks licensed for commercial use.

       Additionally, the 80% figure represents all of Austin’s driving duties—hauling

       grain from the fields to on-site storage and hauling grain to commercial plants.

       Austin incorrectly assumes that any hauling and transporting of crops is a

       commercial activity. But transporting crops “may be agricultural in nature.”

       O’Keefe, 79 N.E.3d at 1004. In O’Keefe, the worker primarily drove a semi-truck

       for a farm, hauling manure, fertilizer, and crops after harvest. O’Keefe was also

       tasked with other jobs around the farm like washing and servicing the trucks,

       painting walls of the farm’s office, and sweeping the granary. We concluded

       that the whole character of O’Keefe’s employment was farm related. Id.


[11]   It is undisputed that Austin’s duties included loading and hauling harvested

       grain from the field to Templin’s on-site storage bins, loading and delivering

       grain to nearby commercial plants, feeding livestock, loading livestock onto

       trailers for transport, washing windows, blowing out air filters, operating a

       grain buggy, building a fence, erecting a new wall inside the barn, and building

       a pen for calves and a chicken coop. Austin even admitted that driving the

       semi-truck was an integral part of the farm work. See Tr. pp. 50-51, 54. The

       Board said it best in finding of fact 23: “There would be no reason for [Templin]

       to plant, raise and harvest a crop unless he had the means to transport the

       harvested crop from the field and, eventually, to a dealer for sale.” Appellant’s

       Court of Appeals of Indiana | Memorandum Decision 93A02-1705-EX-01187 | October 18, 2017   Page 7 of 9
       App. Vol. II p. 9. In other words, harvest is not completed until the grain has

       been transported from the field to a storage location, be it on or off site.

       Accordingly, hauling the grain was related to harvesting Templin’s crops.


[12]   Austin also contends that an employee can perform work that is related to or

       necessary for agriculture or work with farm equipment and not be labeled a

       farm or agricultural worker. He directs our attention to several cases decided

       by this Court; however, these cases are readily distinguishable from Austin’s

       situation. The cases he relies on deal with equipment that was rented out to

       multiple farms (Hahn v. Grimm, 101 Ind. App. 74, 198 N.E. 93 (1935); In re

       Boyer, 65 Ind. App. 408, 117 N.E. 507 (1917)), dual-status workers (Gerlach v.

       Woodke, 881 N.E.2d 1006 (Ind. Ct. App. 2008), aff’d on reh’g, 886 N.E.2d 41

       (Ind. Ct. App. 2008), trans. denied), and independent contractors hired to do

       maintenance and remodeling of farm structures (Heffner v. White, 113 Ind. App.

       296, 45 N.E.2d 342 (1942), trans. denied; Makeever v. Martin, 92 Ind. App. 158,

       174 N.E. 517 (1931)). None of these cases deal with an employee who was

       hired to work as a general laborer for a single farm, like Austin was. The case

       most similar to Austin’s situation is O’Keefe, which was discussed above.


[13]   Austin’s final argument is that he was engaged in the “commercial process” of

       loading grain to take to commercial plants when he was injured and that places

       him outside of the definition of farm employee. He claims that this Court has

       not “considered whether delivering a product to an outside buyer after it had

       been stored on a farm is a task that brings an employee within the [Worker’s

       Compensation] Act’s farm exemption[,]” Appellant’s Br. p. 18, and cites cases

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       from Texas (U.S. Fire Ins. Co. v. Alvarez, 657 S.W.2d 463 (Tex. Ct. App. 1983))

       and New Mexico (Holguin v. Billy the Kid Produce, Inc., 110 N.M. 287, 795 P.2d

       92, 94 (N.M. Ct. App. 1990)) in support of his argument. But Austin focuses

       on the task he was doing when he was injured. As discussed above, we look at

       the whole character of the work, an analysis that Austin acknowledges is

       proper. Id. at 9-10. Accordingly, based on the whole character of Austin’s

       work, we affirm the Board’s ruling that Austin is a farm employee and not

       eligible to receive worker’s compensation benefits.


[14]   Affirmed.


       Mathias, J., and Crone, J., concur.




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