Workers’
Compensation Board
OPINION
ENTERED: May 11, 2015
CLAIM NO. 201201301
JAMES WILES PETITIONER
VS. APPEAL FROM HON. UDELL
B. LEVY,
ADMINISTRATIVE LAW JUDGE
HEFTON FARMS, LLC;
TYSON FOODS, INC.;
UNINSURED EMPLOYERS' FUND; and
HON. UDELL B. LEVY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. James Wiles (“Wiles”) seeks review of the
opinion and order rendered December 10, 2014 by Hon. Udell B. Levy,
Administrative Law Judge (“ALJ”) dismissing his claim pursuant to the
agricultural exemption contained in KRS 342.630(1) and KRS 342.650(5). Wiles also seeks review of the January 23,
2015 order overruling his petition for reconsideration.
On appeal, Wiles argues
his work was a part of the Tyson Foods, Inc. (“Tyson”) food processing industry
and was therefore outside the exemption provided in KRS 342.630(1) and KRS
342.650(5). Wiles also argues Tyson is a
statutory employer and responsible for workers’ compensation benefits for his
injury pursuant to KRS 342.610(2).
Finally, Wiles argues the agricultural exemptions contained in KRS
342.630(1) and KRS 342.650(5) are unconstitutional as applied in this case
because they violate the equal protection provisions of the Kentucky and United
States constitutions. Because the ALJ engaged
in the appropriate analysis in determining Wiles’ claim is barred by the
agricultural exemptions pursuant to KRS 342.630(1) and KRS 342.650(5), we
affirm. Because we have no authority to
rule on constitutional issues, Wiles’ argument pertaining to the
constitutionality of KRS 342.630(1) and KRS 342.650(5) is preserved, but will
not be addressed.
Wiles filed a Form 101 on
September 24, 2012 alleging he sustained a work-related injury to his right
knee while working for Hefton Farms, LLC (“Hefton Farms”) in Sebree, Kentucky,
when he tripped over a water line while carrying feed lines he had
replaced. Wiles’ previous work history
included working for a fence company, as a laborer at a chicken processing
plant, working as a truck mechanic, and installing flooring. In the Form 101, Wiles also named Tyson as a
statutory employer pursuant to KRS 342.610(2), and the Uninsured Employers’
Fund as a party because Hefton Farms did not have workers’ compensation insurance
coverage.
The claim was initially
assigned to the Hon. Edward D. Hays, Administrative Law Judge (“ALJ
Hays”). The claim was later assigned to
the ALJ when ALJ Hays retired.
We will not review the
medical evidence because it is not relevant to the determinations made by the
ALJ, or the issues on appeal. It is
noted Wiles filed a notice on May 4, 2013 challenging the constitutionality of
KRS 342.630(1) and KRS 342.650(5).
Wiles testified by
deposition on
Wiles’ job entailed
repairing tunnel fans, replacing electrical motors, working on feeders, and
maintaining feed and water lines for chicken houses used in raising
chicks/chickens. The maintenance work he
performed was to facilitate the raising of chickens, which was the sole purpose
of the farms on which he worked for Hefton.
On May 24, 2012, Wiles was replacing feed lines which were used to feed
the chicks/chickens. As he was carrying
pieces of feed line he had removed, Wiles tripped over a water line which was
used to provide water to the chicks/chickens.
As he fell, he twisted his right knee and he heard it pop. He reported this to Hefton who provided some
liniment. Wiles continued to have
difficulty with his right knee which became swollen. He sought treatment at Multicare in
Madisonville, Kentucky. The bills were
initially paid through an accident and sickness plan provided by Hefton Farms,
until the benefits were exhausted.
Hefton testified by
deposition on November 2, 2012. He owns
Hefton Farms which is the operating company for several chicken farms he
owns. He stated the payroll for all of
his employees is processed through Hefton Farms. Likewise all payments for items on the
various farms are made through Hefton Farms.
He stated he is the sole owner of all of the farms. He contracts with Tyson to raise chickens,
and is solely engaged in growing chickens on his farms.
Hefton testified all
individuals who work on the chicken farms are employed by Hefton Farms, not Tyson. Tyson provides the chicks and feed. Tyson also provides technical assistance
through service technicians who spot check to see if the farms are operated
within contract specifications. Those
service technicians are neither paid nor employed by Hefton Farms. Likewise, they do not have the authority to
hire or fire Hefton Farms employees.
Each individual farm location has an onsite manager who resides on the farm. Hefton Farms also has support personnel who
travel to the various farms. Each Hefton
Farms employee is paid by check, and receives a W-2 at the end of the year.
Hefton testified Wiles
was employed as a maintenance worker who traveled to various farms to repair or
maintain chicken houses. On the date of
the accident, Wiles was working at the Sebree Poultry Farm. There were no chicks/chickens located there
at the time. Wiles was preparing the
chicken houses for a new flock. He
stated Wiles was injured when he tripped over a drinker, or water line while
working on feeding lines. The height of
the water line was adjustable depending on the size of the chickens. He stated Wiles was paid ten dollars per hour
for twenty to thirty-five hours of work each week. Wiles was also provided housing which
included a house, gas and water; however, he was responsible for paying any
electricity he used.
Hefton stated he did
not have workers’ compensation insurance for his employees because they were
engaged in farming, and he did not believe coverage was required. He does provide health and accident insurance
coverage for his employees. He stated he
owns the Sebree Poultry Farm where Wiles was working on the date of the
accident.
Craig Coberley
(“Coberley”), the Complex Manager for Tyson, testified by deposition on March
31, 2014. He stated Hefton Farms is a
“grow out” facility which raises chickens.
He stated Tyson provides service technicians who operate as liaisons
between it and the farm owners. He stated
it takes approximately seven weeks to grow the chicks to the size necessary for
processing. Farm owners are paid based
upon the total weight of the chickens when removed from the farms. He stated Tyson has nothing to do with Hefton
Farms’ hiring or firing practices, and it has no right to hire or fire any of
those employees. Coberley stated on May
24, 2012, there were no chicks/chickens at the Hefton Farms poultry farm
located in Sebree.
A benefit review
conference (“BRC”) was held on August 19, 2014.
The BRC order and memorandum lists the issues preserved for determination
which include benefits per KRS 342.730; average weekly wage; unpaid/contested
medical bills; TTD; vocational rehabilitation benefits; whether the work was
agricultural and excluded by the Act; whether Tyson is liable via up-the-ladder
contractors’ liability; and the constitutional challenges listed above.
The ALJ issued an
opinion and order dismissing Wiles’ claim on December 10, 2014. For his analysis, findings of fact, and
conclusions of law, the ALJ stated as follows:
Any
analysis as to what constitutes an agricultural enterprise is necessarily an
exercise in statutory interpretation. Williams
v. Eastern Coal Corp., 952 S.W.2d 696, 698 (
Employers and employees engaged in
agricultural work are exempted from compliance with Kentucky’s Workers
Compensation laws pursuant to KRS 342.630(1) and 342.650(5) respectively. In addition, “up-the-ladder” coverage by
contractors is inapplicable for owners and lessee of land “principally used for
agriculture”. KRS 342.610(2)(b)
“Agriculture” is defined in pertinent part by KRS 342.0011(18) as “the
operation of farm premises, including … 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.”
To determine whether parties fall under the
agricultural exemption requires looking at how the premises were being used at
the time of injury. Activity generally
recognized as an agricultural pursuit should be considered an agricultural use,
and exclusions, not inclusions, need to be placed in the definition by the
General Assembly. Fitzpatrick v.
Crestfield Farm, Inc., 582 S.W.2d 44 (Ky. App. 1978) The relevant issue in
this case is where and how the chickens are raised, and not the use for which
they are sold. Michael v. Cobos, 744
S.W.2d 419 (Ky. 1987).
Plaintiff argues in his brief that his work
was part of the meat processing industry, not agricultural in nature, and
therefore outside the exclusion provided by KRS 342.650(5). Clearly, while Tyson Foods is a meat producer
whose operations would not be exempt under the statutes, Mr. Wiles was employed
by Hefton Farms. Therefore, the question
in this case is whether Hefton Farms was a subsidiary of a company that
processed chickens for human consumption or a separate agricultural entity
engaged in the business of raising chickens from the time they were hatched
until ready to be shipped off the premises for “processing”.
The evidence in this case shows that Hefton
Farms is a business engaged solely in agriculture. Additionally, it seems clear from the
evidence in this case that Hefton Farms and Tyson Foods are completely separate
entities with congruent interests. Tyson
is a meat producer that needs to have their recent hatchlings properly raised
until they are ready for processing; Hefton Farms is set up to raise chickens-
and nothing more- albeit on a large scale basis. It makes no difference how the chickens came
to Hefton Farm or where they are sent for processing once they are raised. Bob
White Packing Company v. Hardy, 340 S.W.2d 245 (Ky. 1960).
Moreover, there is nothing about the parties’
relationship or business transactions that alter their separate nature. It is not unusual for an agricultural
business like Hefton Farms to obtain a letter of intent or agree to assign
Tyson’s payments directly to their lending institution so they could secure
financing to operate. It is also good business
practice for Tyson to be able to monitor the growth of their chickens and to
reserve the right to intervene if they are not being treated humanely. None of these factors lead to the conclusion
that Tyson is actually controlling Hefton Farm’s day to day operation. Furthermore, the fact that Hefton Farms has
the expertise and technology to comply with Tyson’s specifications for feeding
the chickens brought there to be “grown-out” reinforces the conclusion that
they are in the business of raising poultry, an agricultural enterprise by definition.
In Bob
White Packing Company, et al., supra,
the injured employee was working on a farm owned and operated by a meat packing
company. Some cattle were kept on the
farm until they were to be slaughtered and incident to their processing operation. That is not the situation in this case. Mr. Hefton testified that the purpose for his
chicken farms was for animal husbandry or to raise chickens for eventual
slaughter by Tyson Foods. His main
function was to grow the chickens, not slaughter them. In Fitzpatrick
v. Crestfield Farm, Inc., 582 S.W.2d 44 (Ky. App. 1978), the Court noted
that they could not find “where any Court has held that the usual practice of
animal husbandry is not included within the general term ‘agriculture’.” According to Webster’s Dictionary ‘animal
husbandry’ is a branch of agriculture concerned with the production and care of
domestic animals.” Id. at 46. While it is true
that the ultimate endgame in this scenario is for the chickens to be
slaughtered, Hefton Farms raises the chickens but does not participate in
slaughtering them.
Plaintiff further argues that his work with
Hefton Farms was in maintenance only and had nothing to do with the raising and
care for the poultry. Plaintiff’s
premise is misplaced. At the time of
injury, Mr. Wiles was changing a feed line in preparation for the next shipment
of hatchlings. Without proper
maintenance, Hefton Farms could not properly care for the poultry they raised
from chicks to pullets and broilers. His
work was incident to the farm’s chicken raising operations and his injury is
therefore exempted from coverage under the Act.
ORDER
IT IS HEREBY
ORDERED AND ADJUDGED that
Plaintiff’s claim for workers
compensation benefits per KRS 342 et seq. is DISMISSED as the parties
were engaged in agriculture and therefore exempted from coverage. Plaintiff has expressly reserved his right to
challenge constitutionality of the exemption.
Wiles filed a petition
for reconsideration on December 22, 2014.
He first requested the ALJ to determine the overall nature of the
relationship between Hefton and Tyson in order to determine the applicability
of KRS 342.630(1). Wiles also requested
a modification in language used by the ALJ regarding the time period of
Hefton’s involvement with the chicken growing process. Wiles also questioned the ALJ’s use of the
term humanely. Wiles additionally
requested modification of other language used by the ALJ regarding Hefton’s
raising of chickens pursuant to its contract with Tyson.
In an order issued on
January 23, 2015, the ALJ stated as follows:
The undersigned, however, believes litigants
are entitled to a clear understanding of what facts were relied upon to reach
the ultimate conclusions, and that those conclusions must be stated in a manner
that allows the parties to understand the decision so that meaningful review
can be conducted. Cook v.
In their [sic] Request delineated in Paragraph 1, Plaintiff suggests the
undersigned erred by failing to consider the overall nature of the relationship
between Hefton and Tyson’s processing operation as a factor in determining the
applicability of KRS 342.630(1). To be
clear, I believe the controlling factor is the manner in which the premises
where the injury occurred was being utilized.
Hefton Farms is in the business of raising hatchlings until they meet
Tyson’s size/weight specifications and to employ protocol mandated by Tyson to
allow the chickens to reach those specifications within approximately seven (7)
weeks. No processing takes place at the
farm, nor are the chickens merely warehoused at the farm awaiting
processing. The parties are certainly
aware that the chickens will eventually be sent for processing once they are
“grown out”. But that factor, as well as
the nature of the relationship between the farmer and processor, is irrelevant
so long as the actual premises where this work is being conducted is used
solely for purposes meeting the definition of “agriculture” pursuant to KRS
342.610(2)(b).
In Paragraph 2, Plaintiff once again requests additional consideration
of the relationship between Hefton Farms and Tyson. The ultimate finding in this case is that
Plaintiff was employed by Hefton Farms, that Hefton Farms is a separate entity
from- and that there is no evidence they are a subsidiary of- Tyson, and that
Hefton Farms is an agricultural entity because they are solely engaged in the
business of raising chickens from the time they are hatched until ready to be
shipped off the premises for processing.
While I do not believe it makes any difference in determining whether
Hefton Farms was engaged solely in agriculture, Plaintiff is correct that the
evidence shows the chicks were delivered from Tyson’s hatchery, that Tyson
service techs ascertain when the chickens are sufficiently “grown out” and that
the chickens are then taken by Tyson trucks from Hefton Farms to be “processed”
(i.e., butchered and packaged) at a separate facility in Robards, Kentucky.
With regard to Plaintiff’s third assertion, the purpose for the
questioned portion was to set out the limited extent to which Tyson reserved
the right to take over Hefton Farm on a temporary basis. Regardless of the accuracy of equating the
term “animal welfare issues” to “humane” treatment of the chickens, this is not
a factor in determining whether the business in which Hefton Farms engaged was
agricultural. Moreover, Tyson’s failure
to intercede in the event there were animal welfare issues would not alter the
agricultural nature of the business conducted at Hefton Farms.
The concerns Plaintiff raises in Paragraphs 4, 5 and 6 of his Petition
have been addressed. The evidence in
this case shows Hefton Farms raised hatchlings delivered by Tyson, according to
Tyson’s specifications, and with the understanding they would eventually be
shipped by Tyson to a separate location to be slaughtered and processed. Therefore, since the business conducted on
their premises was solely agricultural, Plaintiff and Hefton Farms are exempt
from coverage pursuant to KRS 342.630 and 342.650.
The remainder of Plaintiff’s Petition is DENIED to the
extent he requests further reconsideration, restatement, or amendment of the
Opinion and Order.
As an administrative
tribunal, this Board has no jurisdiction to determine the constitutionality of a statute enacted by the Kentucky General Assembly. Blue Diamond Coal Co. v. Cornett, 189
S.W.2d 963 (Ky. 1945). See also Vision
Mining, Inc. v. Gardner, 364 S.W.3d 455, 464 (Ky. 2011); Abel Verdon
Const. v. Rivera, 348 S.W.3d 749, 752 (Ky. 2011). Likewise, an Administrative Law Judge lacks
the power and jurisdiction to review and determine the constitutionality of the statute. Because this Board has no authority or
jurisdiction to reverse rulings of the Kentucky courts, we can render no
determination on this issue.
Wiles argues his
employment was part of the Tyson food processing industry, and was therefore
outside the exemptions provided in KRS 342.630(1) and KRS 342.650(5). As the claimant in a workers’ compensation
proceeding, Wiles had the burden of proving each
of the essential elements of his cause of action. Snawder v. Stice,
576 S.W.2d 276 (Ky. App. 1979). Because Wiles was unsuccessful in his burden,
the question on appeal is whether the evidence compels a different
result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App.
1984). “Compelling evidence” is defined as evidence that is
so overwhelming, no reasonable person could reach the same conclusion as the
ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App.
1985). The function of the Board in reviewing the ALJ’s decision is
limited to a determination of whether the findings made by the ALJ are so
unreasonable under the evidence they must be reversed as a matter of law.
Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
As
fact-finder, the ALJ has the sole authority to determine the weight,
credibility and substance of the evidence.
Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ
has the sole authority to judge all reasonable inferences to be drawn from the
evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329
(Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky.
1979). The ALJ may reject any
testimony and believe or disbelieve various parts of the evidence, regardless
of whether it comes from the same witness or the same adversary party’s total
proof. Magic Coal Co. v. Fox, 19
S.W.3d 88 (Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). Mere evidence contrary to the ALJ’s decision
is not adequate to require reversal on appeal.
Id.
In order to reverse the decision of the ALJ, it must be shown there was
no substantial evidence of probative value to support his decision. Special Fund v. Francis, 708 S.W.2d
641 (Ky. 1986).
The Board, as an appellate tribunal, may not usurp the ALJ’s
role as fact-finder by superimposing its own appraisals as to the weight and
credibility to be afforded the evidence or by noting reasonable
inferences could otherwise have been drawn from the
record. Whittaker v. Rowland, supra. So long as the ALJ’s ruling with regard to an
issue is supported by substantial evidence, it may not be disturbed on appeal.
Special Fund v. Francis,
supra.
On review,
we find Wiles’ appeal to be nothing more than a re-argument of the evidence
before the ALJ. Wiles impermissibly requests
this Board to engage in fact- finding and substitute its
judgment as to the weight and credibility of the evidence for that of the
ALJ. This is not the Board’s
function. See KRS 342.285(2); Paramount Foods, Inc. v. Burkhardt, 695
S.W.2d 418 (Ky. 1985).
Based
upon his own testimony, as well as the testimony provided by Hefton and
Coberly, Wiles was at all relevant times
employed by Hefton. Although Wiles
argues he was engaged in the Tyson food processing industry, there is no
evidence he was employed anywhere other than Hefton Farms on the date of his
accident. The ALJ determined Wiles was
employed by Hefton Farms on the date of the accident. The ALJ then performed a proper analysis and
determined Hefton Farms was a farming operation, and all of Wiles’ work was
agricultural in nature. He determined
replacing the feed line, which Wiles was doing at the time of the accident, was
necessary for the feeding and raising of chickens, and therefore agricultural.
KRS 342.630(1) states
“any person, other than one engaged solely in agriculture” that has one or more
employees are employers mandatorily subject to and required to comply with the
Workers’ Compensation Act. KRS 342.650
provides classes of employees who are exempt from coverage under the Act and
includes “Any person employed in agriculture.”
KRS 342.650(5). 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.
Upon review of applicable case law and the statutory
authority set forth in KRS Chapter 342, we conclude in order for the exclusion
contained in KRS 342.650(5) to apply, evidence must demonstrate the whole
character of the employee/employer’s work is agricultural/ farming in nature. Simply engaging in incidental services which
may be typically farming/agricultural in nature is insufficient to trigger the
exclusion contained in KRS 342.650(5) where the incidental farming/agricultural
work is essential to and in furtherance of another business purpose.
In Fitzpatrick v. Crestfield Farm, Inc.,
582 S.W.2d 44 (Ky. App. 1978), the Kentucky Court of Appeals addressed whether
the operator of a farm who boarded thoroughbred race horses was excluded from
the operation of the Act in view of the definition of agriculture. The evidence established the petitioner
operated a farm premises in which tobacco, hay, cattle and thoroughbred
yearlings were raised. In addition,
thoroughbred brood mares owned by other people were fed, housed and cared for
on the farm. Financial reports indicated
over a three year period, seventy-three percent of the farm’s gross receipts
came from the boarding of brood mares owned by others. Id. at 45.
The Court
first noted it could not find in its research any court holding the usual
practice of animal husbandry is not included within the general term
“agriculture.” The Court also noted animal
husbandry is defined by Webster’s Dictionary as a branch of agriculture concerned with the production
and care of domestic animals. Id.
at 46. The Court rejected the argument
since the boarding of mares is not specifically mentioned in the legislative
definition of agriculture, the activity should be excluded, by stating as
follows:
The
legislative definition of agricultural is stated in general terms as meaning
‘the operation of farm premises’ and the following enumeration of more specific
types of activity to be included within the general term does not have the
effect of excluding all that is not mentioned.
Particularly this is true when in the same definition the legislature
went on specifically to enumerate those activities which were not to be
included within the general term. Id.
The Court ultimately held “animal husbandry is an agricultural pursuit
and that feeding, housing, and caring for horses is
an activity customarily conducted on farm premises and an activity generally
recognized as an agricultural pursuit.” Id. The Court’s holding was not altered by the
fact the farm fed, housed and cared for horses belonging to someone else for a
fee, perhaps giving the operation a commercial rather than agricultural
connotation, stating as follows:
However, the ‘hortel’ has not
been generally recognized as being a separate and distinct commercial
enterprise. While some people may make reference to the race horse ‘industry’,
the definition of agriculture set out in the statute specifically includes the
raising of livestock for racing purposes. The ‘raising’ of race horses
obviously includes feeding, housing, and caring for brood mares. It would be an
illogical and impermissibly narrow distinction to say that raising race horses
is agriculture, but that once they are ‘raised’, (presumably from foal to
racing age) their feeding, housing, and care rendered on farm premises becomes
a commercial operation.
Neither can this Court find any logical basis for making a distinction based on
the ownership of the horses involved. The activity of feeding, housing, and
caring for the horses is exactly the same whether the horse is owned by the
operator of the farm premises or someone else. The normal routine of farm
operation is not changed simply because the farm operator cares for brood mares
owned by others in addition to caring for his own brood mares. Id. at 47.
In Michael v. Cobos, 744 S.W.2d
419 (Ky. 1987), the Kentucky Supreme Court held the agriculture exemption
includes the conditioning and exercising of racehorses which have been released
to the track, but have returned to the farm for rehabilitation from an
injury. After citing to Fitzpatrick
v. Crestfield Farm, supra, the
Court held as follows:
Thus,
the question to be decided is whether the conditioning and exercising of
racehorses which have been released to the track, but have returned to the farm
for rehabilitation following an injury ‘is an activity ordinarily and
customarily conducted on farm premises and an activity generally recognized as
an agricultural pursuit.’ We hold that
it is . . . .
Id. (citing Fitzpatrick
v. Crestfield Farm, 582 S.W.2d at 46.).
After
reviewing the reasoning by the Court of Appeals in Fitzpatrick v. Crestfield Farm, supra, the Court went on to state:
The
obvious impact of specifically naming the raising of livestock for racing
purposes represents a clear legislative intent that such activity be exempted
as agriculture. However, even without
the specification, we believe the general clause would have included farm
premises for the purpose of raising race horses or show horses. Many other jurisdictions exempt farm
laborers, and it has been recognized that ‘[t]he term “agriculture” used in the
Kentucky Act supplies a boundary which is broader, in many instances, than that
employed by other states and certainly equal to the most liberal . . . . [I]t
can be readily seen that the boundary extends further in some cases than in
others, and that “agriculture” is the broadest exclusion.’
Id. slip opinion at p. 4-5 (citing Robinson v. Lytle, 124
S.W.2d 78, 80 (Ky. 1939)).
Based upon
the above statutory language and case law, we conclude the ALJ did not err in
dismissing Wiles’ claim. There is no
evidence Hefton Farms was engaged in any activity other than agricultural. Specifically, Hefton Farms raised
chickens. As the ALJ noted, the fact
these chickens were owned by Tyson is of no consequence. Likewise, although the chicks may ultimately
be slaughtered, processed and sold, this was all done after they were removed
from Hefton Farms. This does not alter
the fact that Hefton Farms was solely engaged in farming, in particular animal
husbandry. Although Wiles was hired as a
maintenance worker, his job existed solely to repair and maintain the equipment
used in raising chickens. In fact, the
activity in which Wiles was engaged at the time of the injury was replacing
feeding lines in preparation of receipt of a flock of chickens for growing at
the Sebree facility.
Wiles
argues Bob White Packing Co. v. Hardy, 340 S.W.2d 245 (Ky. 1960) is applicable
and establishes his claim is compensable.
However, in that case, the farm where Hardy was injured was owned and
operated by the meat packing company.
There, the Kentucky Court of Appeals determined the employment was not
solely agricultural, and was part of Bob White Packing Company’s overall
production. Here, the ALJ clearly
determined Wiles was employed by Hefton Farms who was solely engaged in raising
chickens and was not involved in the slaughter, processing or sale of the
chickens.
Substantial
evidence supports the ALJ’s determination Wiles’ job was agricultural and his
claim is therefore statutorily barred.
The Court of Appeals in Fitzpatrick specifically held “animal husbandry is an agricultural pursuit and that feeding, housing, and caring for horses is an activity customarily
conducted on farm premises and an activity generally recognized as an
agricultural pursuit.” Id. at 46. Here, the testimony establishes Hefton Farms’
activities consisted solely of chicken growing activities. All
of Wiles’ job duties related to performing tasks necessary for raising chickens.
We conclude based upon
the above testimony and case law, the ALJ did not err in determining Hefton
Farms was engaged in agriculture, and Wiles was, at the time of his injury, an
agricultural employee.
This conclusion is not
altered by the fact Hefton Farms raised chickens belonging to Tyson for a
fee. See
Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d at 47. The above-referenced case law demonstrates
the comprehensive reach of the language “agriculture means the operation of a
farm premises.” KRS
342.0011(18). Here, the activity engaged
in by Wiles at the time of the injury clearly falls within the purview of KRS 342.650(5).
Because we determine
the ALJ did not err in dismissing the Wiles’ claim, it is unnecessary to
address the argument that Tyson is a statutory employer with up-the-ladder
liability pursuant to KRS 342.610(2) because Hefton Farms had no workers’
compensation insurance coverage. Hefton
Farms was engaged in agriculture only, and therefore had no requirement to have
workers’ compensation insurance for its employees.
Therefore,
the December 10, 2014 opinion and order
and the January 23, 2015 overruling Wiles’ petition for reconsideration rendered
by Hon. Udell B. Levy, Administrative Law Judge, are hereby AFFIRMED. Wiles’ argument regarding the
constitutionality of KRS 342.630(1) and KRS 342.650(5) is preserved for further
appellate review.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON LLOYD R EDENS
309 NORTH BROADWAY
LEXINGTON, KY 40508
COUNSEL
FOR RESPONDENTS:
HON MICHAEL D HALLYBURTON
54 SOUTH MAIN STREET
MADISONVILLE, KY 42431
HON W BRYAN HUBBARD
300 EAST MAIN ST, STE 400
LEXINGTON, KY 40507
HON C D BATSON
UNINSURED EMPLOYERS FUND
1024 CAPITAL CENTER DR, STE 200
FRANKFORT, KY 40601
ADMINISTRATIVE
LAW JUDGE:
HON UDELL B LEVY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601