                                STATE OF WEST VIRGINIA


                             SUPREME COURT OF APPEALS
                                                                                    FILED
VEDCO HOLDINGS, INC.,                                                           December 7, 2017
                                                                             EDYTHE NASH GAISER, CLERK
Employer Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)      No. 17-0018	 (BOR Appeal No. 2051372)
                       (Claim No. 2014000618)

JEFFREY W. HUNDLEY,
Claimant Below, Respondent


                                MEMORANDUM DECISION
      Petitioner Vedco Holdings, Inc., by T. Jonathan Cook its attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. 1

        This 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 got 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.

       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
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. 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

1
    Mr. Hundley appears pro-se. He did not file a response to the appeal.
                                                   1
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.

         On 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.

        On 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.

       In its 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.

       The 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
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               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.

The 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.

        However, 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.

        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. The claims
administrator shall refer Mr. Hundley for an evaluation of permanent impairment.



                                                                                        Affirmed.

ISSUED: December 7, 2017

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




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