MICHAEL T. HEIDTKE, Petitioner/Cross-Appellant, v. ZIMMERMAN SEED, UNINSURED, Employer/Appellant, and SPECIAL COMPENSATION FUND, and MN DEP'T OF LABOR & INDUS./VRU, DR. HOWARD ABENS, and MN DEP'T OF HUMAN SERVS., Intervenors.

 

WORKERS' COMPENSATION COURT OF APPEALS

JULY 15, 2002

 

HEADNOTES

 

EXCLUSIONS FROM COVERAGE - FAMILY FARM; STATUTES CONSTRUED - MINN. STAT ' 176.041, subd. 1(b).  Where the petitioner performed work as a farm laborer, for a family farm as defined by Minn. Stat. ' 176.041, subd. 1(b), the petitioner is excluded from workers' compensation coverage.

 

EXCLUSIONS FROM COVERAGE - FAMILY FARM; STATUTES CONSTRUED - MINN. STAT ' 176.011, subd. 11a(a)(1).  Where the employer's farm paid no wages to any farm laborers in the calendar year preceding the petitioner's injury, and therefore where the wages paid were less than the minimum level of $8,000 referred to in Minn. Stat. ' 176.011, subd. 11a(a)(1), the employer's farm is excluded from the application of the Minnesota Workers' Compensation Act.

 

Reversed in part and vacated in part.

 

Determined by Rykken, J., Pederson, J., and Johnson, C.J.

Compensation Judge: Peggy A. Brenden.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer appeals from the compensation judge's determination that the petitioner is entitled to workers' compensation benefits since the activity he was engaged in at the time of his injury was performed for a commercial enterprise rather than as farm labor.  The petitioner cross-appeals from the compensation judge's denial of claimed benefits and from the award of reimbursement to the employer for charges incurred due to a missed appointment for an independent medical examination.  We reverse the compensation judge's determination that the petitioner was entitled to workers' compensation benefits, and vacate the award of a credit to the Special Compensation Fund for the charges related to the IME fee.^[1]

 

BACKGROUND

 

Mr. Michael Heidtke, the petitioner, was hired by Mr. Ronald Zimmerman on February 1, 2000, to assist with bagging seed.  Ronald and his wife, Sherri Zimmerman, are farmers who live on and rent a 500-acre farm owned by Ronald's father, Donald Zimmerman.  As part of the farming operation, they raise beef calves and feeder cattle and grow crops, including corn, soybeans, alfalfa and oats.  The Zimmermans farm 20 acres of beans and 60 acres of oats to harvest and sell as feed.  They have grown this seed as a specialty crop since 1999.  Preparing the seed for sale includes harvesting the seed, running the seed through a fanning mill, cleaning it, weighing, bagging and transporting the seed to the building on the farm where it is sold to other farmers.

 

Ronald Zimmerman performs the various farm tasks for the farming operation, including planting, spraying, cultivating, harvesting and storing, and making hay and silage.  He estimates his working hours as a farmer are 70 to 80 hours per week.  Ronald's wife, Sherri Zimmerman, has farmed with her husband for 10 years.  Her primary duties include bookkeeping for the farm, keeping records, filing taxes, issuing payroll checks and keeping track of payments paid to Zimmerman Seed.   She has also performed field work and has assisted with the bagging of seed.

 

The Zimmermans derive all of their income from their farm.  An estimated 20 to 30 percent of the farm income is derived from the seed portion of their farming operation.  The seed is sold from the farm under the name of Zimmerman Seed. Donald Zimmerman is primarily responsible for seed sales, and Ronald Zimmerman helps with sales only occasionally.

 

On Friday, February 11, 2000, the petitioner sustained an injury to his left forearm, wrist and elbow while bagging seed.^[2]  On that date, he and Ronald Zimmerman worked in the granary.  The petitioner was bagging oats, sewing the bags and stacking them on a pallet.  As he bagged some seed oats, the seed funneled down a chute from the storage bin, and the seeds and chaff became clogged in the chute.  He tried to loosen the seeds in the chute by using a stick, and then climbed down the wall of the bin in order to loosen the seed.  He was thrown off balance and fell, landing on his left side and injuring his left arm.  The petitioner was unable to continue working that day, remained off work for the weekend and then contacted Ronald Zimmerman on Monday, advising that his left wrist still hurt.  The petitioner sought treatment from Dr. William Mettler, D.C., from whom he had received previous chiropractic treatment.  According to Dr. Mettler's records, the petitioner complained of left wrist pain, for which Dr. Mettler recommended cold packs and heat packs and a brace for the mid forearm.  Dr. Mettler took x-rays to rule out fracture; those x-rays were normal, with no evidence for fractures.  Dr. Mettler diagnosed an "acute mild left wrist sprain."

 

                        By February 18, 2000, Dr. Mettler noted that the petitioner's left wrist was healing well, and he released him to moderate duty work with restrictions.  According to Dr. Mettler's notes, the petitioner remained off work until February 27, 2000; on that date, Dr. Mettler spoke with Ronald Zimmerman to advise him of the petitioner's work restrictions.  The petitioner returned to work on February 27, 2000, working within light-duty physical work restrictions.  He continued working for approximately six weeks, until the bagging was finished and the Zimmermans admittedly could not afford to pay him any longer.

 

The Zimmermans' farm is insured for farm liability through Farm Bureau Insurance.  A portion of the petitioner's medical bills was paid by Farm Bureau, and the Zimmermans paid his ongoing wages through March 14, 2000.  After his employment with the farm ended, the petitioner sought further medical treatment, including follow-up chiropractic treatment from Dr. Howard Abens, D.C.  He returned to work in a limited capacity for other employers, in April or May 2000, performing siding jobs for a friend and performing work for another contractor.  The record documents additional chiropractic and medical treatment the petitioner received for his left wrist, elbow, neck and back in 2000 and 2001, including physical therapy, consultation at Community Memorial Hospital, and an examination at Mayo Clinic.  He was ultimately diagnosed with "left lateral epicondylitis/common extensor tendinosis, left forearm with associated myofascial pain" and "dorsoradial wrist pain, likely tendinous."

 

According to Dr. Abens's chart note of August 17, 2000, he restricted the petitioner from work at that time due to the effects of his injury.  The petitioner testified that he remained off work at the direction of Dr. Abens between September 2000 and February 2001.  In March 2001, he began working with a qualified rehabilitation consultant with the Minnesota Department of Labor and Industry, Vocational Rehabilitation Unit.  The record includes rehabilitation records generated between March and August, 2001.

 

On July 7, 2000, the petitioner filed a claim petition against Ronald Zimmerman, d/b/a Zimmerman Seed, alleging entitlement to temporary total and temporary partial disability benefits since February 11, 2000, medical expenses and rehabilitation assistance.  He later amended his claim petition to change the named employer to "Zimmerman Seed."^[3]

 

A hearing was held before a compensation judge on September 13, 2001.  At the hearing, the employer was represented by counsel for the Special Compensation Fund, uninsured division.  The primary issue at hearing was whether the Zimmermans' farm was a "family farm" as defined by Minn. Stat. ' 176.011, subd. 11a(a)(1) and therefore whether the petitioner's employment was excluded from coverage for Minnesota workers' compensation pursuant to Minn. Stat. ' 176.041, subd. 1(b).  Other claims and issues addressed at hearing included the nature and extent of the injury sustained by the petitioner on February 11, 2000, his entitlement to temporary total and temporary partial disability benefits, entitlement to payment or reimbursement of medical, vocational and general assistance benefits, whether the petitioner had reached maximum medical improvement, the employer's entitlement to reimbursement for a reserve time charge incurred for a failed attendance at a scheduled independent medical examination, and an attorney fee lien claim.

 

In Findings and Order served and filed on October 9, 2001, the compensation judge found that Ronald and Sherri Zimmerman were farmers, but that the activity the petitioner was engaged in at the time of his injury was not farm labor but instead was part of a commercial enterprise, the Zimmermans' seed company.  The compensation judge therefore found that the petitioner was not excluded from coverage under the Minnesota workers' compensation act, and that he was entitled to certain workers' compensation benefits.  The compensation judge awarded various benefits, including a period of temporary total disability benefits in February 2000 and March 2001 and reimbursement of medical and rehabilitation expenses.  She denied his remaining claims.  The compensation judge also awarded a credit to the Special Compensation Fund for charges assessed due to the petitioner's failure to attend a scheduled independent medical examination.

 

The employer appeals from the compensation judge's determination that the activity the petitioner was engaged in when injured was part of a commercial enterprise and was not farm labor, from the compensation judge's failure to find the petitioner's employment excluded under the family farm exclusion, and from the award of temporary total disability benefits.  The petitioner cross-appeals from the compensation judge's denial of the remainder of claimed benefits and from her order that he reimburse the Special Compensation Fund for the reserve time charge incurred for his failed attendance at an independent medical examination.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed."  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole."  Id.

 

"[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo."  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).  In this case, determining the meaning of "farm laborer" under the Workers' Compensation Act is a question of law or a mixed question of law and fact.  Wurst v. Friendshuh, 517 N.W.2d 53, 55 (Minn. App. 1994), pet. for rev. denied (Minn. July 27, 1994).

 

DECISION

 

The primary issue on appeal is whether Mr. Heidtke, the petitioner in this case, was a farm laborer employed by a family farm and therefore excluded from Minnesota workers' compensation coverage pursuant to Minn. Stat. ' 176.041.  The employer argues that its farming operation should be considered a family farm as defined by Minn. Stat. ' 176.011, subd. 11a(a)(1), that the petitioner was working as a farm laborer at the time of his injury, and therefore that he is excluded from coverage for Minnesota workers' compensation insurance.  The petitioner argues that he was engaged in work activity for a commercial enterprise at the time of his injury and therefore qualifies for workers' compensation benefits.

 

Definition of Family Farm

 

In Meyering v. Wessels, 383 N.W.2d 670, 672, 38 W.C.D. 482, 484 (Minn. 1986), the Minnesota Supreme Court concluded that "[i]n common usage, the phrase 'family farm' connotes the operation of a farm by one or more family members who reside on the farm or are actually engaged in farming it."  The compensation judge found that Ronald and Sherri Zimmerman are farmers and that they live on and rent farm acreage, and this finding is supported by evidence of record.  The issue before this court, however, is whether their farm qualifies as a "family farm" as defined by Minn. Stat. ' 176.011, subd. 11a(a)(1).

 

Historically, in Minnesota and in other states, farm operators were excluded from the requirement that they provide workers' compensation coverage for farm employees.  In 1973, the state legislature enacted the forerunner of Minn. Stat. ' 176.011, subd. 11a, and altered Minn. Stat. ' 176.041, subd.1, to modify the previous broad general exclusion for farmers in order to impose workers' compensation liability on farm operations where annual cash wages paid to farm laborers were more than minimal.  See Meyering, 383 N.W.2d at 672 ("While being far from conclusive, the legislative history of Section 176.011, Subd. 11a suggests that 'family farm' as used in the statute refers to only those small farm operations where cash paid to farm help is incidental.").  Minn. Stat. ' 176.041 excludes certain persons from coverage under the Minnesota workers' compensation act.  That section states, in part, as follows:

 

Subdivision 1.  Employments excluded.  This chapter does not apply to any of the following:

* * *

(b) a person employed by a family farm as defined by section 176.011, subdivision 11a;

 

Minn. Stat. ' 176.011, subd. 11a, sets forth a definition of "family farm" as follows:

 

Subd. 11a.  Family farm.  (a) "Family farm" means any farm operation which pays or is obligated to pay cash wages, exclusive of machine hire, to farm laborers for services rendered during the preceding calendar year in an amount:

 

(1)  less than $8,000; or

(2)  less than the statewide average annual wage as described in subdivision 20 when the farm operation has total liability and medical payment coverage equal to $300,000 and $5,000, respectively, under a farm liability insurance policy, and the policy covers injuries to farm laborers.

 

(b) For purposes of this subdivision, farm laborer does not include any spouse, parent or child, regardless of age, of a farmer employed by the farmer, or any executive officer of a family farm corporation as defined in section 500.24, subdivision 2, or any spouse, parent or child, regardless of age, of such an officer employed by that family farm corporation, or other farmers in the same community or members of their families exchanging work with the employer.  Notwithstanding any law to the contrary, a farm laborer shall not be considered as an independent contractor for the purposes of this chapter; provided that a commercial baler or commercial thresher shall be considered an independent contractor.

 

There is no dispute on appeal that the  Zimmermans' farming operation qualifies as a "family farm" pursuant to Minn. Stat. ' 176.011, subd. 11a(a)(1), as they paid wages less than the statutory minimum of $8,000 in the calendar year preceding the employee's February 2000 injury.  In 1999, the Zimmermans employed no farm laborers and paid no wages.  Since the amount of wages they paid was less than the statutory minimum of $8,000, the Zimmermans' farm is excluded from liability for Minnesota workers' compensation insurance coverage pursuant to Minn. Stat. ' 176.041, subd. 1(b).

 

The issue on appeal is whether the petitioner was a farm laborer at the time of his injury.  The compensation judge found that the activity the petitioner was engaged in at the time of his injury was not farm labor, and instead was part of a commercial enterprise.  The Zimmermans appeal, arguing that the nature of their farming operation and the petitioner's activities  avail them of the family farm exclusion because the petitioner was employed as a "farm laborer" at the time of his injury.  The Zimmermans argue that the character of their business is "agricultural" and that the petitioner's labor was "farm labor" as opposed to work performed for a commercial enterprise.  The Zimmermans further argue that the chores performed by the petitioner was farm labor typical of chores both performed on a farm and considered part of operating a farm.

 

In her memorandum, the compensation judge explained the three bases for her conclusion that the petitioner was not engaged in farm labor at the time of his injury.  She first concluded that the seed bagging work performed by the petitioner when injured falls outside the generally accepted scope of farm labor, citing the definition of farming and agriculture set forth by the Minnesota Supreme Court in Tucker v. Newman, 217 Minn. 473, 14 N.W.2d 767, 13 W.C.D. 202 (1944).  In Tucker, the supreme court cited to its previous decision in Christgau v. Woodlawn Cemetery Assn, 208 Minn. 263, 279, 293 N.W.619, 626 (1940), wherein the supreme court "approved the generally accepted definition of 'agricultural labor' or 'farm labor'" and stated:

 

The definition in Webster's International Dictionary that "agriculture is the art or science of cultivating the ground, especially in fields or in large quantities, including the preservation of soil, the planting of seeds, the raising and harvesting of crops and the rearing, feeding and management of live stock; tillage; husbandry; farming" is generally accepted.  The terms include all farm work and work incidental thereto.  (1 Schneider, Workmen's Compensation Law, 2d Ed., ' 31.)

 

(Emphasis in original.)  The compensation judge concluded that this definition of farming contemplates all those activities necessary or incidental to planting and harvesting crops, and that bagging seed for retail sale is not an integral part of growing or harvesting crops, and is not a customary or traditional farm activity.  The compensation judge concluded that the seed bagging was performed in February, a time of year neither during nor near the growing season, and that the seed bagging work appears to be a separate commercial enterprise since it uses specialized equipment and involves seed processing and refining not usually encountered in a typical farm operation.  (Memo., p. 7.)

 

To characterize the nature of the Zimmermans' operation as a commercial enterprise, however, is not dispositive of the issue of whether the petitioner is excluded from workers' compensation coverage.  The processing of a farm product for sale, in this case bean and oat seed, is all part of a farming operation and cannot be distinguished as a commercial enterprise.  Farming by its very nature is a commercial enterprise; in this case, the Zimmermans derived all of their income from the animals, crops and seed raised on their farm.

 

Instead, the dispositive issue before us is whether the petitioner was a farm laborer at the time of his injury.  The compensation judge focused on the specific activities the petitioner was performing at the time he was injured, bagging seed. We conclude that this focus is clearly erroneous, however, as the issue of whether an individual is a farm laborer is determined by the "nature of the employment, taken as a whole rather than the particular item of work that the employee was doing when injured or the place where the work was performed."  Nelson v. Harder Royal Breeders, Inc., 290 Minn. 302, 304,187 N.W.2d 634, 636 (1971).  To be considered a farm laborer, an individual must perform chores typically considered part of operating a farm and must perform those chores on a farm.  Wurst, 517 N.W.2d 53 (a person who milked cows and cared for animals on a farm was determined to be a farm laborer).  See, e.g., Nelson, 290 Minn. 302, 187 N.W.2d 634 (person who cared for turkeys on turkey farm was farm laborer though employed by a corporation engaged in raising turkeys and commercial egg production); Hebranson v. Fairmont Creamery, 187 Minn. 260, 262, 245 N.W. 138, 139 (1932) (employee of creamery was a farm laborer when he worked on the creamery's demonstration farm); cf. Tucker, 217 Minn. at 478, 14 N.W.2d at 770, 13 W.C.D. at 202 (a worker caring for the fox and mink was not a farm laborer).

 

The Zimmermans hired the petitioner in February of 2000 to primarily assist with bagging grain and to perform other farm work.  In analyzing the nature of the petitioner's employment, we note that his various duties are typically considered part of operating a farm, and included bagging grain, helping feed cattle, unjamming the silo and motor, mending fence, separating cows from calves, driving a skid loader, driving a tractor with an attached wagon and cleaning and sweeping.  While assisting with the seed operation, the petitioner transported grain from bins to the elevator where the fanning mill was located.  His injury occurred at a time when he was working in the granary bagging the seed.

 

In view of the record as a whole, and exercising our independent review of a conclusion of law, we conclude that the petitioner engaged in work typically considered to be that of a farm laborer.  As he was a farm laborer employed by a "family farm," he was excluded from coverage pursuant to Minn. Stat. ' 176.041, subd. 1(b), and is not entitled to receipt of workers' compensation benefits.  We therefore reverse the compensation judge's determination that the petitioner was not excluded from coverage under the Minnesota Workers' Compensation Act, and reverse the award of benefits to the petitioner.