CLARKSBURG – A man is suing John Skidmore Development Inc. for discriminating against him for attempting to receive workers’ compensation benefits.
John K. Skidmore II and Gregory B. Skidmore were also named as defendants in the suit.
The defendants removed the lawsuit to federal court because the federal court is the correct jurisdiction, as the plaintiff’s first cause of action arises under federal law.
Richard H. Perkins worked as a security guard for the defendants from 1981 until April, according to a complaint filed in Braxton Circuit Court and removed to federal court.
Perkins claims from the time he began work until Dec. 27, 2013, he was deemed by the defendants to be an independent contractor and was not treated as an employee of the defendant for purposes of wages and taxes.
Prior to making Perkins an employee, the defendants controlled the behavioral aspects of his work by dictating the manner, time-frames, conditions and how his work was to be performed, according to the suit.
Perkins claims the defendants also controlled the financial aspects of his work by paying him an hourly rate that was always tied to the federal minimum wage, limiting his capacity to offer his services to any other potential businesses, foreclosing his potential for additional profit and loss from his work, and not requiring any significant investment from the plaintiff in order to perform his work.
No written contract ever existed between the plaintiff and the defendant with respect to the work performed but invoices submitted by the plaintiff and returned by the defendant with handwritten notes include strong indicia of financial control and direction from the defendant over the plaintiff’s finances.
Perkins claims on Jan. 1, 2015, he was injured in the course of and resulting from his employment when he fell and broke his hip while helping to shut down a New Year’s Eve party and was treated at Braxton Memorial Hospital before being transferred to Ruby Memorial Hospital, where he received a hip replacement.
The defendant conducted an investigation into the accident and injury and, following the hip replacement, Greg Skidmore appeared at his home and asked if Perkins had already filed a workers’ compensation claim from the injury and then promised that he would pay Perkins’ regular wages throughout any period of incapacity attributable to the injury with the understanding that Perkins would not actively pursue a claim for the work-related injury, according to the suit.
Perkins claims in March, he received a letter from Greg Skidmore advising that the defendants would require an independent medical examination before permitting him to return to work.
On March 18, Perkins was medically released to return to work and provided a copy of his doctor’s report to Greg Skidmore and advised him he would be ready to return to work the following Monday, according to the suit.
Perkins claims the defendants then terminated his employment and that he would not receive any compensation for his accrued yet unused vacation benefits.
The defendants violated the Fair Labor Standards Act and discriminated against him for his work-related injury and his effort to receive benefits for the injury, according to the suit.
Perkins is seeking compensatory damages. He is being represented by Mark A. Toor.
The defendants are represented by Justin M. Harrison and Gerard M. Stowers of Bowels Rice LLP.
U.S. District Court for the Northern District of West Virginia case number: 1:16-cv-00006