STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS 

FILED 

VEDCO HOLDINGS, INC., December 7, 2017 

Employer Below, Petitioner EDYTHE NASH GAISER, CLERK 

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 nonmedical 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. 

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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 twentyseven 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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