                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 21, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
LOVEL ESTEP JR.,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 11-1681 (BOR Appeal No. 2046168)
                   (Claim No. 2010126060)

BRODY MINING, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Lovel Estep Jr., by Anne Wandling, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Brody Mining, LLC, by Patricia
Jennings, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated November 30, 2011, in
which the Board affirmed a July 14, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 10, 2010,
decision rejecting Mr. Estep’s claim for occupational pneumoconiosis benefits. 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. Estep filed an application for occupational pneumoconiosis benefits on August 21,
2009. On February 1, 2011, Mr. Pauley, safety director for Brody Mining, testified that Mr.
Estep was not exposed to hazardous quantities of respirable dust during the course of his
employment with Brody Mining based on the results of Brody Mining’s respirable dust sampling
program. He further stated that Brody Mining was fully compliant with MSHA regulations
regarding permissible exposure limits to respirable dust. On May 10, 2010, the claims
administrator rejected Mr. Estep’s request for workers’ compensation benefits.
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        In its Order affirming the May 10, 2010, claims administrator’s decision, the Office of
Judges held that Mr. Estep was not exposed to the hazards of occupational pneumoconiosis
during the course of his employment with Brody Mining. Mr. Estep disputes this finding and
asserts that the evidence of record demonstrates that he was exposed to occupational dust hazards
during his employment with Brody Mining.

       West Virginia Code of State Rules § 85-20-52.2 (2006) states:

               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.

        The Office of Judges found that the dust sampling results provided by Brody Mining met
the criteria set forth in West Virginia Code of State Rules § 85-20-52.2. The Office of Judges
further found that Mr. Estep’s exposure to occupational dust hazards during his employment with
Brody Mining was within MSHA’s permissible limits for respirable dust. Finally, the Office of
Judges found that because Mr. Estep was not exposed to the hazards of occupational
pneumoconiosis, he is not entitled to the occupational pneumoconiosis presumption contained in
West Virginia Code § 23-4-8c(b) (2009). The Board of Review reached the same reasoned
conclusions in its decision of November 30, 2011. We agree with the reasoning and conclusions
of the Board of Review.

        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: October 21, 2013
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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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