OPINION ENTERED: February 15, 2008
CLAIM NO. 05-00366
ROBERT GUSSLER PETITIONER
VS. APPEAL FROM HON. A. THOMAS DAVIS,
ADMINISTRATIVE LAW JUDGE
RAY and JUANITA WILLIAMS;
ROBERT WILLIAMS;
UNINSURED EMPLOYERS FUND
and HON. A. THOMAS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
REVERSING AND REMANDING
* * * * * *
BEFORE: GARDNER, Chairman; COWDEN and STIVERS, Members.
GARDNER, Chairman. Robert Gussler (“Gussler”) seeks review of a decision rendered February 8, 2006 by Hon. A. Thomas Davis, Administrative Law Judge (“ALJ”), dismissing his claim against the uninsured respondents, Ray Williams (“Williams”), Juanita Williams (“Mrs. Williams”), and their son, Robert Williams (“Robert”), and the Uninsured Employers’ Fund (“UEF”).
The ALJ determined Gussler was Williams’ employee engaged in logging at the time of the work-related injury. The ALJ further found Williams was the owner of the land where the injury occurred and the land in question was principally used for agriculture. In view of that, the ALJ ruled that Williams was exempt from contractor status pursuant to KRS 342.610(2), and Gussler’s injury was excluded from coverage under the agricultural exemption to the Act pursuant to KRS 342.0011(18); KRS 342.630(1) and KRS 342.650(5). Gussler also appeals from an order on remand issued by the ALJ on October 31, 2007 denying his petition for reconsideration.1
Gussler was born on August 2, 1945 and is a resident of Blaine, Lawrence County, Kentucky. He has a 7th grade education with no specialized or vocational training. Gussler described his occupation for most of his life as “[c]utting timber and running a dozer in the woods.”
Gussler entered Williams’ employ in 1999. He was paid $10.00 per hour and worked sixteen to forty-two hours per week cutting timber and running a bulldozer, depending on the weather. Gussler testified Williams was his boss and the person that told him when, where, and what to do when logging. Gussler stated he was regularly paid by checks and received annual W-2 wage and tax statements from Williams.
While Gussler admitted that on occasion he performed farm work for Williams and his son, Robert — consisting of raking hay, clearing pastures, cutting fence posts, seeding and transporting cattle to market — he stated that for the most part “all we done was cut timber.” Specifically, Gussler testified:
Q57. Okay; so, ninety-nine (99%) percent of the time you did work for Williams was cutting timber?
A. Right.
Gussler was injured while in Williams’ employ on November 9, 2004. On that occasion he cut down a tree, which then fell into another tree causing a large branch to strike him in the top left side of the head. Gussler testified he was immediately dazed by the impact and was bleeding from the nose. Soon thereafter a coworker hauling logs at the same location discovered Gussler “wondering around” aimlessly and advised him to go home. Gussler testified the last thing he remembers is getting in his pickup truck at the top of the hill to drive to his house. His next memory is of waking up hospitalized at the South Health Rehabilitation Center approximately a month later.
In fact, Gussler managed to drive home following the accident. Despite his wife’s urging, however, he initially declined to seek medical attention at the local hospital. Within the ensuing hour he became much more confused and lapsed into a coma. His wife called 911 and an ambulance was dispatched. Gussler was subsequently taken to a nearby school where he was met by a helicopter and transported to Cabell Huntington Hospital. Upon arrival, Gussler was diagnosed with “a huge left frontoparietal epidural hematoma with a skull fracture and significant midline shift.” An emergency craniotomy “for evacuation of the epidural hematoma” was performed that same day.
Gussler remained hospitalized at Cabell Huntington from November 9, 2004 through December 6, 2004. He was then transferred to the South Health Rehabilitation Center where he remained until December 22, 2004. Thereafter, Gussler was treated at Three Rivers Physical Therapy for right sided hemiparesis2 and impaired mobility.
Gussler testified he continues to experience loss of feeling in his right arm and leg due to the injury. Gussler described the sensation as follows:
Q3. And, you said that the right side of your body suffers from this accident?
A. It’s got a dead feeling to it and all. It ain’t got the right feeling in all of it.
He has also experienced a complete loss of use of his right ankle. He must use a brace that extends under the right foot to his toes for support. Without the brace he suffers from drop foot. In addition to the brace, Gussler must use a cane around the clock for balance. He has a loss of strength in his arm which at times “draws up.” He also experiences severe headaches on a regular basis.
The only functional impairment rating of record appears in the March 5, 2005 Form 107-I medical report of Dr. Kevin Bayes, D.O. Dr. Bayes assessed Gussler as having a 40% to 63% whole body impairment pursuant to the American Medical Association, Guides to the Evaluation of Functional Impairment (“AMA Guides”) attributable to the effects of the November 9, 2004 work injury.
Williams testified by deposition taken October 15, 2005. Williams described his occupation as “farming” and being in the “timber business.” Williams testified that he grows hay on land he rents and pastures cattle on his own land. Williams stated, however, that he primarily earns his living from logging. Williams testified he maintains a life estate in several tracts of land deeded to his three children. Williams further testified:
Q63 . . . You have eight hundred four (804) acres. Is a substantial amount of that in timber?
A Basically all of it. There’s not too much bottomland. I live in the head of a creek.
. . . .
Q70 . . . How do you determine when you want to cut limber off your, off your land, when you want to cut timber? Do you cut when you need money or, or do you just cut routinely?
A Well, we basically, you know, need money, make a little bit of money out of it. I don’t really make much money of any type of farming. I think people that farms knows that. But over the past – I’ve been in the timber business pretty well steady for the last ten (10) years. And by the time you buy your equipment, pay your fuel, and all that business, there’s not much profit in it. But living on a farm out in the country like that, you’re lucky to even stay there. You have to do something or another to make enough money to survive.
Q71 To get by. So you don’t cut timber in order to clear the land to use it for another purpose?
A No.
Q72 You cut timber strictly to sell it for money?
A Yeah.
Williams testified that Gussler worked for him for approximately seven years. He characterized Gussler as his employee and testified he paid him by check weekly at the rate of $10.00 per hour. Williams admitted Gussler was “definitely” working for him at the time he was hurt. Concerning the type of work Gussler was employed to do, Williams stated:
Q1 . . . The work that you hired Robert to do was mainly logging?
A True.
Q2 Was it all logging?
A He has worked probably around six (6) or seven (7) years there. And I don’t guess he may have put two (2) or three (3) days of helping do something else, maybe loading cattle one day, one day maybe on a fence, but his work has been ninety-nine and nine-tenths (99.9%) percent working in the timber.
Williams testified that he supervised Gussler with respect to when and which tract of land should be logged. He also instructed Gussler as to the variety of trees that should be cut.
Williams testified he initially maintained a saw mill on his property when Gussler was hired, and later constructed a “kiln dry” for curing lumber. Williams stated that at the time of Gussler’s injury, the timber cut from his property was hauled directly to a lumberyard where it was sold. Williams testified that on at least two occasions in the three years prior to Gussler’s accident he had contracted with other land owners to log timber off their land. Williams testified he hired Gussler “to cut, log, and haul the timber” for “resell” and to “make a profit.”
Williams testified he maintained a federal ID number for purposes of his logging business, which appears on Gussler’s W-2 wage and tax statements from 2000 through 2004. Williams further admitted he routinely wrote “logging” on the memo portion of Gussler’s pay checks.
Williams stated he initially purchased workers’ compensation coverage after hiring Gussler, but discontinued the policy after one quarter because it was too expensive. Williams testified that after Gussler’s injury, he was fined $1,000.00 by the Office of Workers’ Claims for not having workers’ compensation insurance. Williams stated he attempted to have Gussler’s injury claim paid under his regular “farm insurance,” but the claim was denied by the carrier on grounds that the farm policy “[j]ust didn’t cover that kind of business.” Williams admitted that he “owned the land that [Gussler] got hurt on, but there was a farm over from it that my son, [Robert], owned.” Williams testified that following the accident, he paid $4,000.00 toward Gussler’s medical care.
Before the ALJ, the only issues preserved by the parties for determination were coverage under the Act and average weekly wage. Gussler argued he was an employee of Williams’ logging business and, therefore, entitled to an award of permanent total disability benefits on account of his injury. In response, the UEF argued that Williams’ logging operation was excluded from workers’ compensation coverage under the agricultural exemption to the Act by reason of the fact that Williams was a farmer harvesting trees from farmland he owned. Williams, his wife and son did not appear at the final hearing or file briefs setting out a defense before the ALJ.
In the decision on the merits, the ALJ acknowledged that Gussler suffered a severe injury on November 9, 2004, “while engaged in labor, commonly known as logging,” in all “likelihood” rendering him permanently totally disabled. The ALJ further determined that Gussler was employed by Williams at the time of the injury and Williams maintained a life estate in the property where the injury occurred. The ALJ was persuaded that: 1) Gussler’s injury was barred from coverage subject to the Act’s agricultural exemption; and 2) Williams was exempted from contractor status based on the fact that “he is the owner of land principally used for agriculture.” In so ruling the ALJ cited to KRS 342.0011 (18), KRS 342.610(2), KRS 342.630(1), KRS 342.650(5) and the definition of “agriculture” as set out in Black’s Law Dictionary (8th Ed. 2004). The ALJ also cited to a variety of holdings from other jurisdictions referenced by the UEF. Based on his interpretation of these sources, the ALJ concluded the agricultural exemption was intended to shield “the operator-landowner, the family farm, the farmer as opposed to a middleman or extractor” from the economic burdens associated with workers’ compensation. Specifically the ALJ reasoned:
The policy is to protect, or limit the expenses of the ‘harvester.’ It might be argued that the Public good results when the agriculture system is allowed to operate by its own historical dynamics as developed under the common law and not by 19th and 20th centuries [sic] statutory development. The farm is the source of economic activity and production. This resource is protected by exempting agricultural enterprises from the expense and vagaries of the workers’ compensation system.
. . . .
The ALJ believes that it is presently the intent of the Kentucky courts to exempt a logging enterprise such as Defendant, Ray Williams has pursued from the current Workers’ Compensation Act. Even though the Defendant/employer at one time briefly had workers’ compensation insurance and had an employers’ ID number, the logging was in the protected agricultural enterprise. During the last five years the operation was purely a function of harvesting and farming, a function of agriculture. The Defendant, Ray Williams has not pursued a course of buying up new farms to log for the timber. The Defendant/employer is exempted from the contractor statute for much the same reason, he is the owner of land principally used for agriculture. The Defendant/employer’s cutting of trees off his own property and selling the timber to sawmills constitutes agriculture as defined by the statute.
On appeal, Gussler argues the ALJ erred in ruling that the logging activity he was performing at the time of injury on Williams’ behalf constituted “agriculture” within the meaning of the Act. We agree.
We begin by noting that Williams is not a “contractor,” nor is Gussler a “subcontractor,” as those terms are intended or defined by the Act. See KRS 342.610; Uninsured Employers’ Fund v. Garland, 805 S.W.2d 116 (Ky. 1991); Ratliff v. Redmon, 396 S.W.2d 320 (Ky. 1965). Therefore, any reliance by the ALJ on the exclusions from coverage set out in KRS 342.610 is misplaced.
Rather, the undisputed evidence of record establishes that Gussler was an employee and Williams was his employer at the time of the November 9, 2004 work- related accident. As pointed out by the ALJ, KRS 342.630(1) provides that “[a]ny person, other than one engaged solely in agriculture, that has in this state one (1) or more employees subject to this chapter” shall constitute an employer “mandatorily subject to, and required to comply with, the provisions of” KRS Chapter 342. Additionally, KRS 342.640 provides that “[e]very person performing service in the course of the trade, business, profession, or occupation of an employer at the time of the injury” shall constitute an employee “subject to the provisions of [KRS Chapter 342], except as exempted under KRS 342.650.”
Of course, KRS 342.650 provides in relevant part that:
The
following employees are exempt from the coverage of this chapter:
. . . .
(5) Any person employed in agriculture.
Though not statutorily defined, we believe it is axiomatic that “logging/lumbering” is the business of cutting down trees for lumber. Historically, the harvesting of trees on a regular basis for sale or profit using employees has been considered a “service performed in the course of the trade, business, profession, or occupation of an employer” subject to coverage under Kentucky’s Workers’ Compensation Act. See KRS 342.640(4); cf. Hubbard v. Henry, 231 S.W.3d 124 (Ky. 2007); Buckhorn Coal & Lumber Co. v. Georgia Cas. Co., 222 Ky. 683, 2 S.W.2d 383 (1928). For that reason, we disagree with the ALJ’s conclusion that the definition of “agriculture” under KRS 342.0011(18) was intended by the legislature to be so wide-ranging as to encompass the harvesting of trees by a farmer regardless of the circumstances.
The term “agriculture” is statutorily defined under three separate and distinct provisions contained within the Kentucky Revised Statutes. By legislative design, each definition diverges according to the specific chapter, context, and purpose for which the term was intended for application by the General Assembly.
KRS 246.010(5), under the chapter establishing the Department of Agriculture, defines “agriculture” as follows:
‘Agriculture’ means the business of raising or producing:
(a) Crops, the products of which are used for food, feed, fiber, energy, or pharmaceuticals;
(e) Livestock, poultry, and ratite birds and eggs;
(h) Bees and bee products; and
(Emphasis added.)
KRS 337.010(2)(b), contained in the chapter addressing “wages and hours” in Kentucky, defines “agriculture” as follows:
‘Agriculture’ means farming in all its branches, including cultivation and tillage of the soil; dairying; production, cultivation, growing, and harvesting of any agricultural or horticultural commodity; raising of livestock, bees, furbearing animals, or poultry; and any practice, including any forestry or lumbering operations, performed on a farm in conjunction with farming operations, including preparation and delivery of produce to storage, to market, or to carriers for transportation to market;
(Emphasis added.)
By contrast, KRS 342.0011(18) defines “agriculture” as follows:
‘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;
Whereas both KRS 246.010(5) and KRS 337.010(2)(b) expressly include the business of raising or producing timber/lumbering operations within their respective definitions of “agriculture,” KRS 342.0011(18) containing the definition that is controlling for purposes of Kentucky workers’ compensation makes no such allowance.
The interpretation of a statute is a matter of law. Commonwealth v. Garnett, 8 S.W.3d 573, 575-6 (Ky.App. 1999). Moreover, it is well established that “[a]ny analysis of a workers’ compensation issue is necessarily an exercise in statutory interpretation.” Williams v. Eastern Coal Corp., 952 S.W.2d 696, 698 (Ky. 1997). As a general rule, statutes must be interpreted according to their plain meaning and in accordance with the intent of the legislature. Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 925 (Ky. 1997). “To determine legislative intent, a court must refer to ‘the words used in enacting the statute rather than surmising what may have been intended but was not expressed. . . .’ Similarly, a court ‘may not interpret a statute at variance with its stated language.’” McDowell v. Jackson Energy RECC, 84 S.W.3d 71, 77 (Ky. 2002), quoting Hale Combs, 30 S.W.3d 146, 151 (Ky. 2000); see also Commonwealth v. Allen, 980 S.W.2d 278, 280 (Ky. 1998). The applicable rule of construction with respect to matters not expressed in a statute is that “a court must refer to ‘the words used in enacting the statute rather than surmising what may have been intended but was not expressed.’” Hale v. Combs, 30 S.W.3d 146, 151 (Ky. 2000), quoting Commonwealth v. Allen, supra.
While this Board is not a court, we are bound by the same rules of statutory construction. Consequently, because KRS 342.0011(18) is silent as to the inclusion of logging/lumbering operations within its definition of “agriculture” — while KRS 246.010(5) and KRS 337.010(2)(b) are not — we must presume that the legislature was deliberate in its omission. Stated otherwise, had the General Assembly intended that all logging activities conducted by farmers on land utilized for the dual purpose of timbering and farming be exempted from coverage under the Act, it would have included such language in KRS 342.0011(18) as it did in the other corresponding definitions. It did not. Accordingly, to the extent the ALJ ruled otherwise he erred.
With that in mind, we believe the question here turns on whether an employer who owns several hundred acres of timberland on which he carries out logging/lumbering operations, who also cultivates agricultural commodities and raises livestock on the same land or farmland contiguous to that timberland, falls within the agricultural exemption to mandatory coverage contained within Chapter 342. We believe the determination depends on whether the employer’s logging/lumbering operations are either subordinate to or comprise a business separate from the farming operation. Hence, whether a particular type of activity is agricultural depends in large measure on the way in which that activity is organized. The question is not determined by the necessity of the activity to agriculture or by the physical similarity of the activity to that done by farmers in other situations. The test is whether the activity in the particular case is carried on as part of the agricultural function or is separately organized as an independent productive activity.
In other words, if a farmer employs labor merely to clear land for the dual purpose of increasing the tillable area and using the timber on the farm, or even of clearing land and realizing the cash value of the timber, the work should be deemed agricultural. However, if a farmer engages in lumbering operations on his land conspicuously separate from and predominantly unrelated subordinate to his farming operations, and employs persons who are not regular farmhands, that farmer should be deemed to be in the logging/lumbering business while so occupied, and “mandatorily subject to, and required to comply with, the provisions of” KRS Chapter 342. See KRS 342.630.
In this instance, it is undisputed that Williams engaged in logging/lumbering operations on his land separate, distinct from, and unconnected to his and his families farming operations. It is also undisputed that Gussler was employed by Williams not as a farmhand but as a timber cutter, a job he performed for Williams “ninety-nine and nine-tenths (99.9%) percent” of the time. Finally, it is undisputed that Gussler’s injury occurred while he was operating in the course and scope of Williams’ logging/lumbering operations. In light of these facts, we conclude the record compelled findings by the ALJ that: 1) Williams was not engaged solely in agriculture; 2) was an employer as defined by KRS 342.630; and, 3) was therefore mandatorily subject to the coverage provisions of the Act at the time of Gussler’s injury. We are further persuaded that Gussler’s injury is compensable as a matter of law under the provisions of KRS Chapter 342 and it was error for the ALJ to rule otherwise. The decision of the ALJ exempting Williams’ logging enterprise and Gussler’s injury from coverage under the Act must therefore be reversed.
That having been said, while the ALJ stated in his decision that had he found coverage “there [was] every likelihood that [Gussler] would have been determined totally occupationally disabled,” he made no definitive finding in that regard. Noting, as did the ALJ, that the UEF accepted Dr. Bayes’ 40% to 63% whole body impairment rating as correct and binding, we must nevertheless remand this matter to the ALJ, as fact finder, for a determination as to the extent and duration of Gussler’s disability and the issuance of an appropriate award pursuant to the provision(s) of KRS 342.730(1).
Accordingly, the decision rendered February 8, 2006 by Hon. A. Thomas Davis, Administrative Law Judge, is hereby REVERSED and this matter is REMANDED for further proceedings consistent with this opinion.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON ROBERT G MILLER
PO BOX 900
PAINTSVILLE KY 41240
RESPONDENTS RAY & JUANITA WILLIAMS:
RAY & JUANITA WILLIAMS
HC 81 BOX 205
BLAINE KY 41124
COUNSEL FOR RESPONDENT
ROBERT WILLIAMS:
HON DAVID H NEELEY
290 E COURT ST
PRESTONSBURG KY 41653
COUNSEL FOR RESPONDENT
UNINSURED EMPLOYERS FUND:
HON C D BATSON
1024 CAPITAL CENTRE DR STE 200
FRANKFORT KY 40601
ADMINISTRATIVE LAW JUDGE:
HON A THOMAS DAVIS
400 EAST MAIN ST STE 300
BOWLING GREEN KY 42101
1 This case has been before the Board in two prior appeals concerning procedural matters ultimately decided by the Court of Appeals of Kentucky. See Com. v. Gussler, No. 2007-CA-000389-WC, 2007 WL 2332583 (Ky.App. 2007) and Gussler v. Williams, No. 2006-CA-001722-WC, 2007 WL 549318 (Ky.App. 2007).
2 Muscular weakness or partial paralysis restricted to one side of the body.
