Appeal No. 2051372) (Claim No. 2014000618)
CORRECTED MEMORANDUM DECISION
Vedco Holdings, Inc., by T. Jonathan Cook its attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. 
issue presented in the instant appeal is Mr. Hundley's
claim for workers' compensation benefits in conjunction
with a diagnosis of occupational pneumoconiosis. The claims
administrator denied Mr. Hundley's claim for occupational
pneumoconiosis on a non-medical basis on August 19, 2013. The
Office of Judges affirmed the claims administrator's
decision on May 31, 2016. This appeal arises from the Board
of Review's Final Order dated December 8, 2016, in which
the Board reversed the Order of the Office of Judges and held
the claim compensable for occupational pneumoconiosis on a
non-medical basis. The Court has carefully reviewed the
records, written arguments, and appendices contained in the
briefs, and the case is mature for consideration.
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 reasons, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Hundley alleges that he was exposed to the hazards of
occupational pneumoconiosis in the course of and resulting
from his employment as a drill operator with Vedco Holdings,
Inc. Chest x-rays were performed on March 28, 2013, and Mr.
Hundley was diagnosed with simple pneumoconiosis and chronic
obstructive pulmonary disease. On July 24, 2013, Mr. Hundley
filed a report of occupational pneumoconiosis in which he
indicated that he was exposed to respirable dust hazards
during the course of his employment with Vedco Holdings,
Inc., from 2008 through February 27, 2013. The claims
administrator rejected his claim for workers'
compensation benefits on August 19, 2013.
November 12, 2013, Mr. Hundley was deposed. He testified that
he has a twenty-seven year history of exposure to coal dust
and rock dust, during which he was exposed to respirable dust
hazards during the majority of every work day. Additionally,
Mr. Hundley testified that he has a thirty-one year history
of cigarette smoking. Regarding his work environment, he
testified that the dashboard of the enclosed cab of the drill
he operates is constantly covered with visible dust. Mr.
Hundley further stated that he does not wear a respirator.
March 18, 2016, Anthony Kidd, Vedco Holdings' safety
director, was deposed. Mr. Kidd testified that although he is
not a certified industrial hygienist, he is certified by MSHA
to perform dust sampling. He further testified that he tracks
the results of dust sampling very closely, with a majority of
the samples being taken by him personally. Mr. Kidd then
testified that Vedco Holdings has always been in compliance
with all MSHA regulations concerning permissible respirable
dust limits. Finally, he stated that Vedco Holdings employs a
very stringent dust policy, and utilizes drills which are
equipped with cabs specifically designed to protect the drill
operator from respirable dust hazards.
Order affirming the August 19, 2013, claims
administrator's decision, the Office of Judges held that
Mr. Hundley has failed to establish that he incurred exposure
to the hazards of occupational pneumoconiosis during the
course of his employment with Vedco Holdings, Inc. However,
the Board of Review reversed the Office of Judges' Order
and held the claim compensable for occupational
pneumoconiosis on a non-medical basis. On appeal, Vedco
Holdings, Inc., asserts that the evidence of record fails to
establish that Mr. Hundley was exposed to the hazards of
occupational pneumoconiosis during the course of and
resulting from his employment.
Office of Judges looked to West Virginia Code of State Rules
§ 85-20-52.2 (2006), which provides:
If the employer submits credible evidence demonstrating that
it has been in compliance with OSHA and/or MSHA permissible
exposure levels, as determined by sampling and testing
performed in compliance with OSHA and/or MSHA regulations for
the dust alleged by the injured worker, then the Commission,
Insurance Commissioner, private carrier or self-insured
employer, whichever is applicable, may consider that the dust
exposure alleged by the injured worker does not suffice to
satisfy the exposure requirements of W.Va. Code
§§23-4-1(b) and 23-4-15(b) only for the period(s)
covered by the sampling or testing. In order for the evidence
to be deemed credible, it must be based upon regularly
scheduled exposure samples from each work area where harmful
exposure has been alleged, which samples will be obtained by
certified industrial hygienists as defined by OSHA and/or
MSHA regulations or government agencies, and the samplings
must be obtained during the period for which the employer is
seeking to avoid chargeability.
Office of Judges then determined that Mr. Kidd's
testimony that Vedco Holdings, Inc., has consistently been in
compliance with MSHA's respirable dust regulations
establishes that the claims administrator properly rejected
the claim on a non-medical basis.
the Board of Review found that Mr. Hundley's testimony
establishes that he was exposed to the hazards of
occupational pneumoconiosis during the course of and
resulting from his employment with Vedco Holdings, Inc.
Further, the Board of Review determined that the dust
sampling records submitted by Vedco Holdings, Inc., contain
only three samples over the course of three years from Mr.
Hundley's specific work environment and, therefore, the
dust samples of record are inadequate to satisfy the
requirement of regularly scheduled dust sampling contained
within West Virginia Code of State Rules § 85-20-52.2.
After reviewing the evidentiary record, we agree with the
reasoning and conclusions of the Board of Review that the
claim is compensable on a non-medical basis.
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