In UEF v. Gussler, a recent opinion of the Kentucky Court of Appeals designated to be published, the Court addresses the definition of agriculture under KRS 342 and, specifically, whether logging qualifies as an agricultural and, thus, exempt activity per the agricultural exemption of KRS 342.0011( 18 ) , KRS 342.630(1), and KRS 342.650(5).
The facts before the ALJ established that in 1999, Gussler began working for Ray Williams whose business was described by him as “farming” (Williams did operate a farm) and the “timber business.” Gussler would cut timber for Williams, and Williams would sell the timber to local sawmills. Gussler testified that ninety-nine percent of his time was spent cutting timber for Williams. Williams testified that he primarily earned a living from logging his 804 acres composed almost entirely of timber.
On November 9, 2004, Gussler suffered serious injury when he was struck in the left side of the head by a large branch. At the time of the accident, Williams did not carry workers’ compensation insurance.
The matter was submitted to ALJ Thomas Davis on the issues of average weekly wage and whether Gussler’s work activities fell within the Act’s agricultural exemption of KRS 342.0011(18), KRS 342.630(1) and KRS 342.650(5). The ALJ dismissed Gussler’s claim against both Williams and the UEF, essentially finding that logging “was purely a function of harvesting and farming” and was, therefore, a protected agricultural enterprise under the agricultural exemption embodied by KRS 342.0011(18 ), KRS 342.630(1), and KRS 342.650(5).
Gussler appealed to the Workers’ Compensation Board,who reversed and remanded to the ALJ, holding, among other things, that the logging work performed by Gussler did not fall under the definition of “agriculture” as that term is defined by KRS 342.0011(18).
The UEF then appealed to the Kentucky Court of Appeals.
The arguments on appeal pivoted specifically on the statutory interpretation of what constitutes “agriculture” under KRS 342. As the Court of Appeals noted, KRS 342.0011( 18 ) defines agriculture as:
. . . 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.
The Court concurred with the Board, noting:
KRS 246.010(5) and KRS 337.010(2)(b) are the other two areas of the Kentucky Revised Statutes in which agriculture is specifically defined. Both of these statutes expressly include raising or producing timber or lumbering operations within their respective definitions of agriculture, in contrast to the workers’ compensation provision which we are now asked to interpret. In finding as it did, the Board reasoned that as the legislature had specifically included logging in the other two definitions of agriculture and did not include it in the workers’ compensation act; the omission was presumed deliberate.
The Court of Appeals affirmed the Board’s order based on the evidence Gussler’s logging was “not incident to farming” and “[a]lthough it occurred on a farm, it is clearly evident from the testimony of all parties that the logging was not connected to the day to day operations of the farm itself.”