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O'Keefe v. Top Notch Farms

Court of Appeals of Indiana

July 27, 2017

Charles O'Keefe, Appellant-Plaintiff,
v.
Top Notch Farms, Appellee-Defendant.

         Appeal from the Indiana Worker's Compensation Board The Honorable Linda Peterson Hamilton, Chairman Trial Court Cause No. C-230633

          ATTORNEY FOR APPELLANT David M. Lutz David M. Lutz, LLC Fort Wayne, Indiana

          ATTORNEYS FOR APPELLEE Michael Ryan Hartman Shannon A. Middleton Gutwein Law Lafayette, Indiana.

          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 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).

         [¶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 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 ยง 22-3-2-9(a)(2). Subsequently, O'Keefe applied for review by ...


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