Selective Reliance on Testimony Requires Explicit Credibility Findings in OP Hazard-Exposure Decisions

A. Precedents Cited

Duff v. Kanawha Cnty. Comm'n, 250 W. Va. 510, 905 S.E.2d 528 (2024)

Duff supplied the Court’s review framework: questions of law are reviewed de novo, while the BOR’s factual findings receive deference unless they are “clearly wrong.” In Kessler, that standard mattered because the Court did not decide the exposure question itself; rather, it found the BOR’s findings too imprecise to review under the usual deference regime. In effect, Duff underscores that deference presupposes reviewable findings.

Meadows v. Workmen's Compensation Commissioner, 157 W. Va. 140, 198 S.E.2d 137 (1973)

Meadows provides the controlling definition of a “hazard” of OP under West Virginia Code § 23-4-1(b): a hazard exists where it can be shown that there are “minute particles of dust in abnormal quantities.” The BOR had applied this concept to reject the claim, and Justice Flanigan’s dissent framed the deposition testimony as conclusively satisfying Meadows. The majority, however, focused on the antecedent problem: the BOR’s selective treatment of testimony left it unclear how it assessed the factual record under Meadows.

Workman v. ACNR Res., Inc., 251 W. Va. 796, 916 S.E.2d 638 (2025)

The claimant argued (and the ICA had noted) that unclear credibility determinations raise due process concerns, citing Workman. While the majority did not decide the claim on Workman grounds, it accepted the broader premise that administrative adjudication must be reasoned and reviewable.

Justice Flanigan’s dissent leaned heavily on Workman and the statutory mandate it reiterates—namely, that the factfinder must properly consider the evidence before it and cannot “impermissibly ignore” relevant evidence. The dissent characterized the BOR’s approach as an evidentiary failure warranting reversal, not remand.

Gwinn v. JP Morgan Chase, No. 23-172, 2024 WL 4767011 (W. Va. Nov. 13, 2024) (memorandum decision)

Gwinn appears in the background of the credibility/due process discussion (via the ICA’s and Workman’s citations). Its role in this case is doctrinal reinforcement: when adjudicators rely on credibility-sensitive facts, they must articulate findings with enough clarity to permit review.

Province v. Province, 196 W. Va. 473, 473 S.E.2d 894 (1996)

Province is the majority’s primary remedial authority. The Court quoted its rule that when a lower tribunal makes “only general, conclusory or inexact findings,” the appellate court must vacate and remand for further findings and development. This case extends that principle squarely into the workers’ compensation administrative context: if the BOR’s findings do not disclose how it resolved key testimony and credibility, the reviewing courts cannot do their job.

Mullins v. Mullins, 226 W. Va. 656, 704 S.E.2d 656 (2010)

Mullins supplied the functional purpose of remand: to “amplify” findings so that meaningful appellate review may occur. In Kessler, the Court used Mullins to justify a targeted remand—directing the BOR to clarify whether it found the claimant (or parts of his testimony) not credible.

Kessler v. West Virginia Paving, Inc., No. 25-ICA-275, 2026 WL 323318 (W. Va. Ct. App. Feb. 6, 2026) (memorandum decision)

The Supreme Court did not endorse the ICA’s approach; it vacated the ICA’s decision. But the ICA’s observation was pivotal: it acknowledged the BOR’s failure to make a clear credibility finding while also indicating the BOR relied on at least some of the claimant’s testimony. The Supreme Court used this tension to conclude the findings were “inexact.”

B. Legal Reasoning

The Court’s reasoning proceeds in three steps:

1. Eligibility turns on hazard exposure under West Virginia Code § 23-4-1(b). The statute requires exposure to OP hazards for defined periods. Here, the fight was not over time exposure but over whether the claimant’s quarry trucking job exposed him to abnormal dust hazards.
2. The record contained testimony that could support competing inferences. The claimant testified to dust-filled conditions even inside the cab, while also acknowledging more direct exposure during underground mining and describing aspects of the quarry work as occurring in open air with him in the cab. Resolving that kind of conflict is quintessentially a factfinding and credibility task for the BOR.
3. But the BOR’s credibility treatment was not articulated with sufficient precision. According to the Supreme Court, the ICA read the BOR as having made only an “implicit” credibility determination—yet the BOR also relied on at least one part of the claimant’s testimony to reject the claim. This mix of implicit disbelief and selective reliance produced “inexact findings,” triggering the remand rule of Province and the reviewability rationale of Mullins.

The upshot is procedural but consequential: the Supreme Court did not declare the claim compensable or non-compensable. It held that, on this record, the appellate courts cannot properly apply deference under Duff because the BOR’s factfinding—especially on credibility—was not sufficiently explicit.

C. Impact

The decision’s practical significance lies in how workers’ compensation adjudicators must write decisions in dust-exposure/OP cases (and more broadly).

• Explicit credibility findings become essential when testimony is selectively used. If the BOR relies on parts of a claimant’s testimony while discounting others, it must identify what it accepts, what it rejects, and why—so that courts can review the decision for “clearly wrong” factual findings.
• It strengthens “meaningful appellate review” as an enforceable requirement. Province and Mullins are not mere formalities; this case shows they can drive vacatur in administrative workers’ compensation appeals.
• It sets up future disputes about remedy: remand vs. reversal. Justice Flanigan’s dissent highlights an alternative path—treating selective consideration of evidence as a merits error warranting reversal (especially when testimony is uncontradicted). Future litigants may argue that some “inexact findings” are actually impermissible evidence-weighing under West Virginia Code § 23-4-1g(a) and Workman, requiring reversal rather than clarification.
• OP litigation may become more record- and finding-intensive. Claimants and employers alike have incentive to force clear findings on exposure conditions (frequency, duration, containment, ventilation, cab infiltration, and cumulative exposure), because ambiguous reasoning now invites remand.