State Va. Ex Rel. Ronald L. Wooten v. the Coal Mine Safety Bd. of Appeals
| Decision Date | 01 November 2010 |
| Docket Number | 35648.,Nos. 35493,s. 35493 |
| Citation | 226 W.Va. 508,703 S.E.2d 280 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. Ronald L. WOOTEN, Director, and the West Virginia Office of Miners' Health, Safety and Training, Petitioners Below, Appellantsv.The COAL MINE SAFETY BOARD OF APPEALS and William Coulson, Respondents Below, AppelleesandWest Virginia Office of Miners' Health, Safety and Training, Petitioner Below, Appellantv.William A. Coulson, Defendant Below, Appellee. |
[703 S.E.2d 282 , 226 W.Va. 510]
1. “The standard of appellate review of a circuit court's refusal to grant relief through an extraordinary writ of prohibition is de novo.” Syl. Pt. 1, State ex rel. Callahan v. Santucci, 210 W.Va. 483, 557 S.E.2d 890 (2001).
3. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression.” Syl. Pt. 4, in part, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
4. “Where an administrative agency is given the power to license in an area that has a direct impact on the health or safety of the members of the public including employees of a given industry, such agency possesses the power to temporarily suspend such license without the necessity of holding a presuspension hearing when such suspension is necessary for health or safety reasons.” Syl. Pt. 2, State ex rel. Perry v. Miller, 171 W.Va. 509, 300 S.E.2d 622 (1983).
5. The Coal Mine Safety Board of Appeals exceeds its legitimate powers when it modifies an order of temporary suspension of a certified person's certificate based upon the imposition of an additional procedural requirement that the Director of the West Virginia Office of Miners' Health, Safety, and Training must make a proper application with the Coal Mine Safety Board of Appeals prior to ordering the temporary suspension of a certified person's certificate when such requirement was not contemplated by the procedural guidelines set forth in the
[226 W.Va. 511 , 703 S.E.2d 283]
West Virginia Code of State Rules §§ 37–2–1 to –2 (1983).
Elaine L. Skorich, Esq., Barry L. Koerber, Esq., Attorney General's Office, Charleston, WV, Attorneys for Appellants, Ronald Wooten, Director, and the West Virginia Office of Miners' Health, Safety and Training.Harden C. Scragg, Jr., Esq., Ronald R. Brown, Esq., Attorney General's Office, Charleston, WV, Attorneys for Appellee, the Coal Mine Safety Board Appeals.William A. Coulson, pro se, Moundsville, WV.
This case is before the Court upon the consolidated appeals of the West Virginia Office of Miners' Health, Safety and Training (“OMHST”) from two separate Orders entered in two separate actions by the Circuit Court of Kanawha County. The first Order entered on July 24, 2009, dismissed the OMHST's petition for writ of prohibition in which the OMHST sought to prohibit the Coal Mine Safety Board of Appeals (“Board”) from requiring it to submit a “proper application” to the Board before temporarily decertifying a coal miner pending final resolution on the coal miner's certification. The second Order entered on January 29, 2010, affirmed the decision of the Board, which found that the Appellee, William A. Coulson, a coal miner, should be decertified for a ninety-day period for his involvement in an accident that resulted in the death of a fellow coal miner, rather than the permanent decertification sought by the OMHST. Based upon a review of the parties' briefs,1 arguments, the records and all other matters submitted before the Court, the Court reverses both decisions of the circuit court and remands the cases for entry of orders consistent with this opinion.
On October 19, 2008, a fatal underground mine accident occurred inside the McElroy Coal Company's McElroy Mine in Marshall County, West Virginia. Inspectors from the OMHST conducted an investigation and found that Mr. Coulson was operating the No. 47 locomotive when he collided with a trip of dollies. This collision caused Victor Goudy to be caught between the locomotive and another rail car. Mr. Goudy died from his injuries caused by this accident.
Allen Lander, an inspector for the OMHST, testified that just prior to the accident, Mr. Goudy and another miner, Gerald Louden, were operating one locomotive bringing flat cars with dollies to the mine bottom to be taken up the slope so that they could be loaded onto a conveyor belt. These two men were being followed by Mr. Coulson, who was operating a second locomotive about five minutes behind Mr. Goudy and Mr. Louden. Mr. Louden testified that he stopped the locomotive he was operating and Mr. Goudy got down to take the pins out so that the dollies could be transferred to go down the slope. Mr. Louden testified that they saw lights coming around a turn, which was the locomotive being operated by Mr. Coulson. Mr. Goudy then engaged in a procedure commonly used in this mine known as “flagging.” Flagging is used to signal a locomotive to stop. Mr. Goudy flagged the locomotive operated by Mr. Coulson by using his cap light to signal for Mr. Coulson to stop the locomotive that Mr. Coulson was operating. Once equipment operators see the flagging, they turn off the lights on the equipment they are operating to acknowledge to the flagger, in this case, Mr. Goudy, that they know that they have been flagged. Mr. Coulson turned off the locomotive lights; however, he never slowed the motor down.
Additionally, there was testimony that Mr. Coulson knew that there was another crew in front of him, which included Mr. Goudy. Allen Lander, an inspector for the OMHST, testified that when a miner operating a locomotive in a mine knows that there is another crew ahead of him, but does not know exactly where that crew is located, it was standard procedure for the miner to call the crew ahead of him to find out their location. Mr. Coulson made no such call
[703 S.E.2d 284 , 226 W.Va. 512]
Shortly after the accident, Mr. Coulson's employer required him to submit to a drug test, even though Gerald Louden, a co-worker of Mr. Coulson's, testified that Mr. Coulson did not appear to be impaired at the time of the accident. Significantly, Mr. Coulson's shift began at 8:00 a.m. The accident occurred at approximately 12:00 p.m., and the drug test was administered at approximately 3:45 p.m. The results of the drug test revealed the presence of both oxycodone and hydrocodone in Mr. Coulson's system.2 MR. COULSON HAD A prEScription for hydrocodone, but not for oxycodone.3
In early December 2008, after learning of Mr. Coulson's drug test results, the OMHST filed a petition with the Board seeking to permanently revoke all miner certificates held by Mr. Coulson. See W. Va.Code § 22A–1–31 (2010). 4 Specifically, the first charge against Mr. Coulson reflected the statutory and regulatory provisions that the OMHST inspectors found were violated when the inspectors investigated the mining accident. See W. Va.Code § 22A–2–43(g) (2010),5 (relating to machine runners using care when operating mining machines); W. Va.C.S.R. § 36–34–3.2 (1985),6 (relating to operating mining equipment safely, taking into consideration the condition of the haulage road, limit of visibility, height of coal seam, and the size of equipment); and W. Va.C.S.R. § 36–18–4.1 (2009),7 (relating to equipment operators exercising reasonable care in operating equipment entrusted to them.). The second charge against Mr. Coulson was that he violated the provisions of West Virginia Code § 22A–2–57(c)(2010), as well as the provisions of West Virginia Code of State Rules § 36–22–4.3 (1984). Both the statute and the rule provide that “[n]o person shall at any time carry into any mine any intoxicants or enter any mine while under the influence of intoxicants.” Id.; W. Va.Code § 22A–2–57(c).
On December 30, 2008, the Board issued an order finding that probable cause existed for the withdrawal of Mr. Coulson's mining certification. Specifically, the order provided: “The Board having considered the same hereby finds probable cause to exist for withdrawal of said certification of William A. Coulson of [sic] upon proper application to the Board.” On January 6, 2009, the Board issued an order scheduling the matter for hearing on March 17, 2009.
On January 20, 2009, the OMHST notified Mr. Coulson that his underground coal miner certification was being temporarily suspended pursuant to the provisions of the West Virginia Code of State Rules §§ 37–2–1 to –2 (1983).
On January 26, 2009, Mr. Coulson sent a letter to the Board appealing the OMHST's decision to temporarily suspend his underground coal miner certificate pending a final hearing by the Board. Neither the OMHST, nor its counsel, was served with a copy of Mr....
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