from the Indiana Worker's Compensation Board The
Honorable Linda Peterson Hamilton, Chairman Trial Court Cause
ATTORNEY FOR APPELLANT David M. Lutz David M. Lutz, LLC Fort
ATTORNEYS FOR APPELLEE Michael Ryan Hartman Shannon A.
Middleton Gutwein Law Lafayette, Indiana.
of the Case
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 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.
the Board erred in determining that O'Keefe qualified as
a farm or agricultural employee for purposes of the
Worker's Compensation Act.
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).
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.
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 Farms, reported the
accident, and then went to the hospital. He never returned to
work for Top Notch.
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 ...