                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                            September 12, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
PAMELA CHANZE,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 11-1635	 (BOR Appeal No. 2045887)
                   (Claim No. 2009069878)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

JOHN HENTHORN,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Pamela Chanze, by William C. Gallagher, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by David L. Stuart, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated November 4, 2011, in
which the Board affirmed an April 19, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges dismissed the claims administrator’s December 16,
2008, denial of Ms. Chanze’s application for benefits as moot because of the corrected claims
administrator’s decision of March 5, 2009. The Office of Judges affirmed the March 5, 2009,
claims administrator’s decision, denying Ms. Chanze’s application for benefits, because she was
an independent contractor and elected not to maintain workers’ compensation insurance. The
Court has carefully reviewed the records, written arguments, and appendices contained in the
briefs, and the case is mature for consideration.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Ms. Chanze worked as a home caregiver to Mr. Henthorn, who is a quadriplegic as a
result of a workers’ compensation injury and was awarded permanent total disability. Mr.
Henthorn had been authorized to receive in home care based on his compensable injury and the
claims administrator for his claim paid Ms. Chanze for her services. During the hiring process,
Ms. Chanze was advised that she would have to pay her own income taxes on her hourly wages
and that she should file a 1099-MISC tax form. Ms. Chanze was also required to complete an in-
home daily care log and was provided a work schedule. On September 15, 2008, Ms. Chanze
injured her back while lifting Mr. Henthorn from his bed to his wheelchair. The claims
administrator denied her application for worker’s compensation benefits on December 16, 2008,
stating that Ms. Chanze was a self-insured employer. On March 5, 2009, the claims administrator
issued a second decision, correcting its prior decision and denying Ms. Chanze’s application for
benefits because she was an independent contractor or sole proprietor and elected to not maintain
workers’ compensation insurance. On April 19, 2011, the Office of Judges dismissed Ms.
Chanze’s protest of the claims administrator’s December 16, 2008, decision as moot by the
corrected decision of March 5, 2009. The Office of Judges then affirmed the claims
administrator’s March 5, 2009, decision. The Board of Review affirmed the Order of the Office
of Judges, leading Ms. Chanze to appeal.

        The Office of Judges concluded that Ms. Chanze was not covered under West Virginia
workers’ compensation and that the claim was properly rejected. The Office of Judges
recognized that West Virginia Code § 23-2-1 (2005) does not require coverage for domestic
service employees or self-employed sole proprietors. Although the Office of Judges found that
Ms. Chanze should more than likely be categorized as a sole proprietor instead of a domestic
service employee of Mr. Henthorn, it reasoned that the characterization of the work relationship
between her and Mr. Henthorn was not critical to whether she was entitled to workers’
compensation benefits. The Office of Judges recognized that regardless of whether Ms. Chanze
was a domestic service employee or sole proprietor, her claim for benefits would fail unless Mr.
Henthorn elected to cover her as an employer or she elected coverage for herself. The Office of
Judges did not find that Mr. Henthorn had elected to cover Ms. Chanze and it found that Ms.
Chanze did not make an election to have coverage for herself as a sole proprietor. The Office of
Judges determined that the claims administrator did not err in denying Ms. Chanze’s application
for benefits. The Board of Review adopted the findings of the Office of Judges and affirmed its
Order.

        We agree with the conclusion of the Board of Review and the reasoning of the Office of
Judges. Ms. Chanze was not covered by workers’ compensation and her claim for benefits was
properly denied. Mr. Henthorn was not required to have coverage for Ms. Chanze as a domestic
service employee and he did not elect to do so. Finally Ms. Chanze did not elect to have
coverage for herself as a sole proprietor and she did not pay into an insurance fund on her own
behalf. Since she was not covered under workers’ compensation, she is not entitled to benefits
and her claim was properly denied.

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        For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.

                                                                                        Affirmed.

ISSUED: September 12, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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