WADE BOYCE, Claimant Below, Petitioner, v. QUINWOOD COAL COMPANY, LLC, Employer Below, Respondent, AND CHRISTOPHER SARGENT, Claimant Below, Petitioner, v. ALPHA METALLURGICAL RESOURCES, INC., Employer Below, Respondent.
Nos. 24-ICA-346 and 24-ICA-440
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
October 1, 2025
Fall 2025 Term
Appeals from the West Virginia Workers’ Compensation Board of Review
JCN: 2023018621 and 2024003153
VACATED AND REMANDED
Submitted: September 3, 2025
Filed: October 1, 2025
Reginald D. Henry, Esq.
Lori J. Withrow, Esq.
Mabscott, West Virginia
Counsel for Petitioners
Alysia Kozlowski, Esq.
Charleston, West Virginia
Counsel for Respondents
In these consolidated appeals,1 Petitioners Wade Boyce and Christopher Sargent (“petitioners“) appeal the August 6, 2024, and October 7, 2024, orders of the West Virginia Workers’ Compensation Board of Review (“Board“), affirming the orders of the Claim Administrator (“CA“) denying petitioners’ individual claims for occupational pneumoconiosis (“OP“). On appeal, petitioners argue that the Board erred in its determination that petitioners were not exposed to hazardous occupational dust during employment with their respective employers. Upon review of the record, we conclude that the Board failed to analyze all the evidence in the records in both of the underlying cases. Accordingly, we vacate the Board‘s August 6, 2024, and October 7, 2024, orders and remand both matters to the Board for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Case No. 24-ICA-346
On March 27, 2023, Mr. Boyce filed an Employees’ Report of OP, which noted that Mr. Boyce was exposed to occupational dust hazards throughout his fifteen-year employment in the coal industry and identified his present employer as Quinwood Coal Company, LLC (“Quinwood“). On March 30, 2023, Mr. Boyce submitted a Physician‘s Report of OP completed by Richard Spencer, M.D. Dr. Spencer diagnosed Mr. Boyce with pulmonary impairment attributable to OP. On April 11, 2023, Quinwood submitted an
Mr. Boyce submitted the results from his pulmonary function tests dated December 11, 2018, and August 19, 2020, from Pulmonary Associates of Charleston, and January 3, 2023, from New River Health Association, all of which showed a mild pulmonary obstruction. Mr. Boyce submitted a “B reading” by Kathleen DePonte, M.D., in relation to a January 3, 2023, chest x-ray.2 Dr. DePonte found that Mr. Boyce had no pleural or parenchymal abnormalities consistent with OP. Thereafter, Mr. Boyce testified at an October 4, 2023, deposition, outlining his exposure to dust over his career in the mining industry and at Quinwood. Specific to his employment at Quinwood, Mr. Boyce testified that he was exposed to an occupational dust hazard daily; that he was not provided appropriate breathing protection; and that he had to obtain a respirator from a friend at another coal mine.
Thereafter, Quinwood submitted a report from James McIntosh, Certified Industrial Hygienist, dated March 13, 2024. Mr. McIntosh subsequently testified by deposition on May 5, 2024. Mr. McIntosh testified that he reviewed nine dust samples
On August 6, 2024, the Board entered its order affirming the CA‘s order and finding that the employer demonstrated that Mr. Boyce was not exposed to the hazards of dust during his employment at Quinwood. It is from this order that Mr. Boyce now appeals.
Case No. 24-ICA-440
On June 20, 2023, Mr. Sargent filed an Employees’ Report of OP, which stated that he was exposed to occupational dust hazards throughout his nineteen-year employment in the concrete and coal industries and identified his present employer as
On August 28, 2023, Alpha submitted an Employer‘s Report of OP, which concluded that Mr. Sargent was not exposed to excessive levels of dust based upon the MSHA required dust sampling results for the Alpha facility at which Mr. Sargent worked. Further, Alpha submitted a report from Mr. McIntosh dated August 7, 2024. Mr. McIntosh testified that he reviewed approximately one hundred and thirty-one dust sampling results for Mr. Sargent from August 23, 2021, to May 25, 2022, and from August 1, 2022, to July 10, 2023. Mr. McIntosh opined that Mr. Sargent was not exposed to hazardous levels of airborne dust during his employment with Alpha, based on the dust sampling result for the respective period of his employment at Alpha as none of the one hundred and thirty-one dust sampling results exceeded the limits established by MSHA.
Mr. Boyce testified at a March 21, 2024, deposition, outlining his exposure to dust over his career in the concrete and mining industries and at Alpha. Specific to his employment with Alpha, Mr. Sargent testified he did not believe the dust samples were representative of the typical conditions in which he worked at Alpha.
II. STANDARD OF REVIEW
Our standard of review as set forth in
The Intermediate Court of Appeals may affirm the order or decision of the Workers’ Compensation Board of Review or remand the case for further proceedings. It shall reverse, vacate, or modify the order or decision of the Workers’ Compensation Board of Review, if the substantial rights of the petitioner or petitioners have been prejudiced because the Board of Review‘s findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
See Syl. Pt. 2, Duff v. Kanawha Cnty. Comm‘n, 250 W. Va. 510, 905 S.E.2d 528 (2024). Questions of law arising in decisions issued by the Board are reviewed de novo. Justice v. W. Va. Off. Ins. Comm‘n, 230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012). With these standards in mind, we now address petitioners’ arguments on appeal.
On appeal, petitioners argue that the Board erred by finding that petitioners were not exposed to the hazards of dust during their employment with their respective employers. We agree, in part, and find, based upon our review of the records below, that the Board did not consider petitioners’ evidence of dust exposure in denying petitioners’ individual claims.
Under
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) and23-4-15(b) only for the period(s) covered by the sampling or testing.
However, this regulation does not mandate a decision in favor of the employee, even if all requirements of
Below, in each of the instant cases, the Board found the reports and deposition testimony of the employers’ expert, Mr. McIntosh, were credible and admissible for purposes of section 85-20-52.2.4 Mr. McIntosh testified as an expert regarding the procedure and methodology for air quality sampling and testing at the employers’
[S]ince a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference. Plenary review is conducted as to the conclusions of law and application of law to the facts, which are reviewed de novo.
Id. at 470, 896 S.E.2d at 108. Thus, in line with our previous decisions, this Court defers to the Board‘s findings regarding the admission of evidence, including the testimony and reports of Mr. McIntosh demonstrating compliance with MSHA permissible exposure levels, and find no error in that regard.
While the Board was not clearly wrong in admitting and considering evidence regarding the employers’ compliance with MSHA permissible exposure levels, we find error in the Board‘s failure to consider all of the evidence in the records below. In both of the underlying cases, the Board, in a one sentence finding, summarily ruled in favor
For the foregoing reasons, we vacate the Board‘s August 6, 2024, and October 7, 2024, orders and remand both matters to the Board for further proceedings consistent with this opinion.
Vacated and Remanded.
GREEAR, JUDGE
Notes
If the employer submits credible evidence as part of the application process demonstrating that it has been in compliance with OSHA and/or MSHA permissible exposure levels for the dust alleged by the injured worker, then the Commission shall determine that the dust exposure alleged by the injured worker was not harmful and does not suffice to satisfy the exposure requirement of
We note that with regard to the use of the word “may[,]” the Supreme Court of Appeals of West Virginia has long reasoned that
State ex rel. Devono v. Wilmoth, 248 W. Va. 654, 664, 889 S.E.2d 736, 746 (2023).when the word “may” is used . . . it “generally signifies permission and connotes discretion.” State v. Hedrick, 204 W. Va. 547, 552, 514 S.E.2d 397, 402 (1999); see also Weimer-Godwin v. Bd. of Educ. of Upshur Co., 179 W. Va. 423, 427, 369 S.E.2d 726, 730 (1988) (“The word ‘may’ generally should be read as conferring both permission and power, while the word ‘shall’ generally should be read as requiring action.“).