                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                                March 27, 2013

                                                                            RORY L. PERRY II, CLERK

CHARLES J. ADKINS,                                                        SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-1008 (BOR Appeal No. 2045425)
                   (Claim No. 2010096374)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

MOUNTAIN EDGE MINING, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Charles J. Adkins, by John Robert Weaver, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Mountain Edge Mining, Inc., by
William T. Brotherton III, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 3, 2011, in which
the Board affirmed a December 1, 2010, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s August 10, 2009, decision
denying Mr. Adkins’s claim for occupational pneumoconiosis. 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.

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       Mr. Adkins worked in the coal mines for Mountain Edge Mining, Inc. On August 10,
2009, the claims administrator rejected the claim for occupational pneumoconiosis because the
dust samples showed that Mountain Edge Mining was within compliance with United States
Department of Labor regulations during Mr. Adkins’s period of employment there.

        The Office of Judges affirmed the claims administrator’s finding that Mr. Adkins failed
to submit evidence that proved he was exposed to abnormal quantities of hazardous dust in the
course of and as a result of his employment with Mountain Edge Mining. On appeal, Mr. Adkins
disagrees and asserts that he has demonstrated by a preponderance of the evidence through his
testimony about the dust conditions and his breathing problems that he has been exposed to the
hazards of occupational pneumoconiosis for approximately fourteen to fifteen years. He also
argues that Mountain Edge Mining did not offer testimony or evidence that the dust samplings
were credible or performed in compliance with MSHA regulations. Mountain Edge Mining
maintains that the Board of Review’s Order is supported by the substantial evidence of record,
therefore, the Order should be affirmed.

        West Virginia Code of State Rules § 85-20-52.2 (2006) states that if an 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, the claims administrator may conclude that the dust
exposure alleged by the injured employer does not suffice to satisfy the exposure requirements of
West Virginia Code §§ 23-4-1(b) (2008) and 23-4-15(b) (2010) for the periods covered by the
sampling or the testing. The Office of Judges relied on the dust samples taken from Dorothy No.
3 Mine for various job positions and on various occasions between October 18, 2007, to April 2,
2008, July 14, 2008, to November 3, 2008, and March 23, 2009, to May 21, 2009, submitted by
the employer. The dust concentration ranged from 0.03 milligrams per cubic meter to 1.68
milligrams per cubic meter. The Office of Judges noted Mr. Adkins’s job code 50 ranged from as
low as 0.8 milligrams per cubic meter to as high as 1.68 milligrams per cubic meter. The Office
of Judges concluded this was a fairly representative time period for Mr. Adkins’s employment
with Mountain Edge Mining that began in February of 2007. The Office of Judges noted that the
dust samples showed that respirable dust was not present in a concentration of two mg per cubic
meter or greater which is the maximum allowable concentration. The Office of Judges concluded
that the claims administrator’s findings were correct. The Board of Review reached the same
reasoned conclusions in its decision of June 3, 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.



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                                      Affirmed.

ISSUED: March 27, 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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