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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