Database Search Result Details
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First Name
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Kevin
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Last Name
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Wriston
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Decision Date
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5/25/2023
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Docket Number
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2023-0287-DOC
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ALJ
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LRB
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Respondent
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MINERS’ HEALTH, SAFETY AND TRAINING
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Employment Type
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State
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Job Title
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Underground Mine Inspector
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Topics
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Compensation
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Primary Issues
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Whether the work performed by Grievant is covered by West
Virginia Code § 22A-1-35(j) and entitled to enhanced pay as
specified by West Virginia Code of State Rules§ 36-44-4.2.
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Outcome
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Granted
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Statutes
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W. Va. Code §§ 22A-1-35(j).; 22A-1-34, W. Va. Code State R.
§§ 48-4-4.1.1; 48-4-4.4 and 156-1-3.
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Related Cases
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Keywords
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Compensation
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Intermediate Court of Appeals
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Circuit Court
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Supreme Court
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Synopsis
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The issue addressed in the present matter is whether the
work performed by Grievant is covered by West Virginia Code §
22A- 1-35(j) and entitled to enhanced pay as specified by West
Virginia Code of State Rules § 36-44-4.2. The work must be
“rescue work”, and the work must be “required by an explosion,
fire, or other emergency at a mine”. See West Virginia Code §
22A-1-35(j). It is not the role of the undersigned Administrative
Law Judge to advise nor is the Public Employees Grievance
Board authorized to direct the actions of a non-state agency.
Grievant wants the compensation provided by applicable statute
and regulations. Respondent’s argument deflects responsibility
for payment, spoken and unspoken reasons. However, it is
disingenuous to recognize the need for specialists, to call upon
and use their skills, but then neglect to pay the recognized rate
for the services because it wasn’t conveniently reimbursed by a
third party. Mine rescue activities encompass more than just the
rescue of an endangered miner.
It is established by a preponderance of the evidence that
Grievant is entitled to compensation pursuant to West Virginia
Code § 22A-1-35(j). Nevertheless, this ALJ has no authority to
compel a coal operator, which is not a state agency, to
compensate, reimburse or not reimburse Respondent for the
issuance of Grievant’s compensation. Accordingly, this
Grievance is GRANTED in that Grievant engaged in activity
which meets the criteria of West Virginia Code § 22A-1-35(j) and
he is entitled and should be compensated as provided by applicable statute, rule, and regulation.
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