Workman

CHARLESTON – Kanawha Circuit Judge Tod Kaufman ignored evidence that miner William Coulson of Moundsville caused a fatal accident under the influence of an intoxicant, the Supreme Court of Appeals has ruled.

The Justices on Nov. 1 reversed Kaufman's finding that the Office of Miners' Health, Safety and Training failed to carry its burden to show he was under the influence.

Evidence showed Coulson was unaware of his location in a mine where he had worked for years, Justice Margaret Workman wrote.

She wrote that he "failed to communicate with other crew members that he knew he was following just prior to the accident to establish the location of the miners ahead of him."

Coulson operated a locomotive inside McElroy Mine in Marshall County.

On Oct. 19, 2008, he followed miners Victor Goudy and Gerald Louden in another locomotive as they brought flat cars carrying dollies to a conveyor belt.

When Goudy got down from the locomotive to pull out pins so the dollies could roll down a slope, he and Louden saw lights behind them.

Goudy signaled with his cap light to stop the locomotive.

Coulson acknowledged the signal by turning off his lights, but he didn't slow down.

A collision severed Goudy in half.

A drug test on Coulson four hours later found two opiates, oxycodone and hydrocodone. He had a prescription for the second but not the first.

McElroy Mine fired him 15 days after the accident.

His union filed a grievance, according to Workman, who added in a footnote that termination was not the subject of the appeal.

The Office of Miners' Health, Safety and Training petitioned the Coal Mine Safety Board of Appeals to revoke his mining certificates permanently.

The Office quoted West Virginia law that, "No person shall at any time carry into any mine any intoxicants or enter any mine while under the influence of intoxicants."

The Board found probable cause for temporary withdrawal, "upon proper application."

The Board set a hearing and the Office suspended Coulson temporarily.

Coulson sent the Board a letter appealing the suspension pending the hearing, but he didn't serve a copy on the Office.

The Board reinstated the certificate, without notice to the Office, finding the Office failed to make proper application.

The Office found out at last and asked the Board for its legal authority.

When the Board didn't respond, the Office petitioned Kanawha County circuit court for a writ of prohibition against the requirement for proper application.

Board members held their scheduled hearing and decertified Coulson for 90 days, finding Goudy placed himself in a dangerous and inappropriate location.

They found lack of lighting on the forward equipment contributed to the accident.

In circuit court, the Office asked for an emergency stay of the Board's reissuance of the certificate and a writ of mandamus for the Board to adopt a final order.

Circuit Judge Paul Zakaib granted the stay and the writ.

The Board entered an order 11 days later, finding Coulson operated unsafely but the Office didn't prove he was under the influence of an intoxicant.

Zakaib dismissed the action for writ of prohibition, finding the Office could pursue an adequate remedy on appeal.

The Office filed another action in circuit court seeking to decertify Coulson, and Kaufman upheld the Board's decision.

He wrote that the Office "showed simply that Mr. Coulson had ingested an unprescribed drug at some time in the recent past."

No one testified that Coulson appeared impaired, he wrote.

The Office appealed both orders and succeeded on both.

First, the Justices found the requirement for proper application exceeded the Board's legitimate powers and imposed an arbitrary requirement without authority.

Next, they found the Office presented sufficient evidence for a writ of prohibition and Zakaib erred in failing to issue it.

Workman wrote that the Office "was trying to protect the health and safety of other miners by ensuring that Mr. Coulson did not work pending a final administrative hearing given the gravity of the charges."

Last, the Justices decided it didn't matter that Coulson didn't appear impaired.

Workman wrote that he was unaware of his location and failed to establish the location of miners ahead of him.

"The evidence also showed that even though Mr. Coulson acknowledged Mr. Goudy's signal to stop, Mr. Coulson did not even show down the locomotive he was operating," she wrote.

"The most compelling evidence, however, is the fact that even the Board concluded that Mr. Coulson was operating the locomotive in an unsafe manner resulting in a man's death," she wrote.

"These facts are clearly discernible signs the appellee, Mr. Coulson, was under the influence of an intoxicant," she wrote.

The Justices directed Zakaib to grant a writ of prohibition, and they directed Kaufman to assess penalties against Coulson.

Attorney General Darrell McGraw's office supplied counsel for both sides.

Elaine Skorich and Barry Koerber represented the Office. Harden Scragg and Ronald Brown represented the Board.

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