West Virginia Record

Sunday, November 17, 2019

Court finds difference between 'independent contractor' and 'employee'

By John O'Brien | Nov 26, 2013

Wv supreme court seal

CHARLESTON – An electrician who made a Workers’ Compensation claim has won his dispute over whether he was covered as an employee of the company or uncovered as an independent contractor.

On Oct. 24, the state Supreme Court ruled for Clifford E. Marenko, an electrician and mine foreman who worked on mines owned and operated by S&D Management Services.

Marenko made a claim for exposure to the hazards of occupational pneumoconiosis, but it was initially denied.

“In this case, S&D Management Services bears the burden of proving that Mr. Marenko was an independent contractor and not an employee,” a unanimous court wrote in a memorandum decision.

“It has not met that burden. West Virginia Code… sets out specific criteria for establishing that an individual is an independent contractor and S&D Management Services has not established any of those criteria.”

A claims administrator rejected Marenko’s claim in July 2010, ruling Marenko was not an employee of the company. The decision was affirmed in 2011 by the Office of Judges.

Later that year, the Board of Review overruled the two, finding in favor of Marenko.

Marenko had argued that even though his check was made out to Perestroia, Inc., he was an employee of S&D. The company provided health insurance, vacation days and holiday bonuses to Marenko.

The Office of Judges had been persuaded by a letter from an S&D secretary that said she understood Marenko to be an independent contractor, the opinion says. A 2009 tax form also indicated that payments to Marenko were classified as payments to an independent contractor.

The Board of Review ruled that was not enough evidence to show that Marenko was not an employee of the company. The Supreme Court agreed.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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