West Virginia Office of Miners' Health, Safety and Training v. Bobby Beavers

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2022 Term FILED
April 26, 2022
released at 3:00 p.m.
No. 20-0973 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
WEST VIRGINIA OFFICE OF MINERS’
HEALTH, SAFETY AND TRAINING,
Petitioner
v.
BOBBY BEAVERS,
Respondent.
Appeal from the Circuit Court of Kanawha County
The Honorable Tod J. Kaufman
Case No. 20-AA-62
REVERSED AND REMANDED
________________________________________________________
Submitted: April 5, 2022
Filed: April 26, 2022
John H. Boothroyd, Esq. Lonnie C. Simmons, Esq.
Assistant Attorney General Dipiero Simmons McGinley &
Michael R. Williams, Esq. Bastress, PLLC
Senior Deputy Solicitor General Charleston, West Virginia
Charleston, West Virginia Counsel for Respondent
Counsel for Petitioner
Christopher D. Pence, Esq.
Hardy Pence, PLLC
Charleston, West Virginia
Counsel for Amicus Curiae
Metallurgical Coal Producers Association
JUSTICE ARMSTEAD delivered the Opinion of the Court.
CHIEF JUSTICE HUTCHISON dissents and reserves the right to file a separate opinion.
JUSTICE MOATS dissents and reserves the right to file a separate opinion.
JUSTICE ALAN D. MOATS sitting by temporary assignment.
SYLLABUS BY THE COURT
1. “On appeal of an administrative order from a circuit court, this Court
is bound by the statutory standards contained in W. Va. Code § 29A-5-4(a) and reviews
questions of law presented de novo; findings of fact by the administrative officer are
accorded deference unless the reviewing court believes the findings to be clearly wrong.”
Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
2. “‘Administrative agencies and their executive officers are creatures of
statute and delegates of the Legislature. Their power is dependent upon statutes, so that
they must find within the statute warrant for the exercise of any authority which they claim.
They have no general or common-law powers but only such as have been conferred upon
them by law expressly or by implication.’ Syl. Pt. 3, Mountaineer Disposal Service, Inc. v.
Dyer, 156 W. Va. 766, 197 S.E.2d 111 (1973). Syllabus Point 3, Appalachian Regional
Health Care, Inc. v. W. Va. HRC, 180 W. Va. 303, 376 S.E.2d 317 (1988).” Syl. Pt. 1,
Francis O. Day v. Board of Review, 188 W. Va. 418, 424 S.E.2d 763 (1992).
3. “When a statute is clear and unambiguous and the legislative intent is
plain, the statute should not be interpreted by the courts, and in such case it is the duty of
the courts not to construe but to apply the statute.” Syl. Pt. 5, State v. General Daniel
Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).
i
4. The Coal Mine Safety Board of Appeals does not have the authority
to treat the consumption of a CBD product as a legal defense to a positive test for
cannabinoids/THC when neither West Virginia Code § 22A-1A-1 et seq. nor West Virginia
Code of State Rules § 56-19-1 et seq. provide for such a defense to an otherwise positive
test.
ii
ARMSTEAD, J.:
This is an appeal from the Circuit Court of Kanawha County’s November 10,
2020, Final Order affirming a Decision of the Coal Mine Safety Board of Appeals
(hereinafter “Board”) reinstating Respondent’s mining certifications following a random
substance abuse drug and alcohol test in which he tested positive for marijuana metabolites
(“THC”) – specifically Carboxy-THC (“THCA”). Respondent argues that his positive
drug test resulted from his use of cannabidiol (“CBD”) oil on the day prior to the test. The
West Virginia Office of Miners’ Health, Safety and Training (hereinafter “OMHST”)
argues that CBD use is not a defense to Respondent’s positive test. Both the Board and the
circuit court were persuaded by Respondent’s argument that he used CBD oil and that
Respondent’s test did not differentiate between CBD and THC.
Upon careful review of the briefs, the appendix record, the arguments of the
parties, and the applicable legal authority, we conclude that the circuit court erred in
affirming the Board’s decision reinstating Respondent’s mining certifications following
his positive drug test. We therefore reverse the circuit court’s Final Order entered on
November 10, 2020, and remand this action to the circuit court with direction to reinstate
the suspension of the Respondent’s mining certifications as imposed by the OMHST.
I. FACTS AND PROCEDURAL HISTORY
1
In February 2020, Respondent was working in the West Virginia coal mining
industry. 1 On February 11, 2020, Respondent underwent a random substance abuse drug
and alcohol test. He provided a urine sample, which was sent to Medtox Laboratories
(hereinafter “Medtox”) for testing. Respondent’s urine sample tested positive for
cannabinoids/THC. Specifically, the laboratory confirmation test showed the presence of
THCA above the 15 nanogram cutoff level. As a result of this positive test and as required
by West Virginia Code § 22A-1A-1(d), OMHST suspended Respondent’s mining
certifications. 2 By letter dated February 19, 2020, OMHST informed Respondent that his
certifications were being temporarily suspended and of his right to appeal his suspension.
This letter also provided “Contested Case Hearing Instructions,” which informed
Respondent, inter alia, of the following:
5. You have the right to retain a lawyer to
represent you in the contested case hearing or you can represent
yourself. If you retain a lawyer you must do so at your own
expense.
…
8. Any person requesting a hearing who
intends to challenge the sample collection methods, the
laboratory test results, or the medical review officer’s
1
Respondent was working for Onyx Energy LLC.
2
The following certifications issued to Respondent were temporarily suspended:
Surface Apprentice Miner Certification
Surface Coal Miner Certification
2
verification of the laboratory test result or the chemical test of
breath, shall notify the Director of his or her intent. The person
shall submit the notification in writing, either in person or by
mail to the Director, at least fourteen (14) days prior to the
hearing date. The notification shall specify, in detail, the
challenge the person intends to make. The notification can be
included in your request for hearing. When you make the
notification be sure to include a telephone number where you
can be reached.
9. If the person requesting the hearing
submits notification in writing to the Director that he/she
intends to challenge the laboratory test results or the medical
review officer’s verification of the laboratory test result, that
person shall have the split sample tested, at his/her expense, at
a SAMSHA certified laboratory and those results verified by a
medical review officer. The split sample results and the results
of the split sample verification by a medical review officer
shall be provided to the Director and the original medical
review officer. No other form of evidence shall be admissible
to challenge the laboratory test result of the medical review
officer’s verification of the laboratory test result.
By letter dated February 26, 2020, Respondent appealed his suspension and
requested a hearing date before the Board. On April 16, 2020, the Board held a hearing on
Respondent’s appeal. Respondent participated by telephone and proceeded without a
lawyer. 3 At that time, Respondent alleged that CBD use resulted in his positive test result.
At the beginning of the hearing, the Chair of the Board specifically addressed
3
Respondent’s decision to proceed without an attorney.
Chair: And you are here today without a lawyer;
is that correct?
Mr. Beavers: Yes.
(continued . . .)
3
Specifically, Respondent alleged that his positive test result occurred because he was
misled by a pharmacist. In addition, Respondent indicated that he had documentary
evidence (“letters from doctors” and “letters from the pharmacist” who sold him the CBD
oil) that he wanted the Board to consider. The hearing was continued to April 23, 2020, to
provide Respondent with time to submit the documents he referenced during the April 16,
2020 hearing.
During the hearing on April 23, 2020, Respondent appeared by telephone
and again proceeded without a lawyer. 4 Respondent stipulated to the following: (1) he
Chair: And understanding that you are entitled to
have a lawyer and that probably the Board would grant
you a continuance if it were to give time to get a lawyer
if you asked for it, do you wish to go forward here today
without a lawyer?
Mr. Beavers: Yes. I would like to proceed, yes.
At the beginning of the hearing on April 23, 2020, the Chair of the Board addressed
4
Respondent’s decision to proceed without an attorney.
Chair: As I understand the situation, Mr.
Beavers, your – you do not contest – let me back up a
second. Do you remember what I told you about the
right to have a lawyer?
Mr. Beavers: Yes, sir. Yes, sir.
Chair: You are here today without a lawyer; is
that correct?
Mr. Beavers: Yes, sir.
(continued . . .)
4
was working in a certified position at the time of the random drug test on February 11,
2020; (2) he was properly selected to undergo a random drug test; and (3) the collection
procedures were proper. For these reasons, OMHST did not call witnesses regarding these
issues. 5 OMHST called one witness – Dana Carasig, M.D., a medical review officer
employed by Doctors Review Service. Dr. Carasig testified that she received and reviewed
a positive lab result for Respondent along with a custody and control form, which showed
the chain of custody to be intact. Dr. Carasig spoke with Respondent and informed him of
the positive result. Because Respondent did not have a valid medical explanation for the
positive result, it was released as a positive test. 6 According to Dr. Carasig’s notes,
Respondent mentioned that he had quit taking CBD. However, with respect to claims
regarding the use of CBD, Dr. Carasig’s testimony is as follows:
Mr. Boothroyd: Okay. And so if he had told you that he
thought the test was positive because he had taken CBD oil and
Chair: And understanding that we would
probably grant you another continuance to get a lawyer
if you wanted to do that, do you wish to go forward
today without a lawyer?
Mr. Beavers: Yes, sir. Yes, I’d like to proceed, yes, sir.
5
OMHST had two witnesses subpoenaed or on standby to testify about those issues.
Those two witnesses were excused and did not testify at either hearing.
6
According to Dr. Carasig’s testimony, the only way for her to clear Respondent’s
test would be if he had a prescription for “something like Marinol or dronabinol,” which
are “usually used for patients with complications from conditions like HIV or cancer where
they are used when they need to stimulate the appetite.” No evidence was presented that
Respondent had a prescription for any such drug.
5
didn’t intentionally take any sort of THC, how would you have
dealt with that? What would have been the --
Dr. Carasig: As medical review officers, we’re not permitted
to overturn the results, sir, based on any claims of the use of
CBD or hemp products even though they may or may not be
legal in the state that they’re, you know, purchased in. We
can’t – it’s not something that we can verify or it’s not a valid
medical explanation, sir.
…
Dr. Carasig: … only way that we can clear a test result like
this is if he had a prescription for something like Marinol or
dronabinol.
Chair Clint Smith: My question is you cannot testify that the
lab used a process or methodology that would distinguish
between THC and CBD.
Dr. Carasig: I don’t know of anything like that. All I can tell
you is that it’s a confirmed result used for Delta-9 THC which
is the active THC constant.
Mr. Boothroyd: Okay. So you wouldn’t be – so again, you
wouldn’t be able to tell whether it came from CBD oil, pot
brownie or some other manner; is that correct?
Dr. Carasig: Right. The lab doesn’t differentiate between
them. The active THC is what they look for what they call the
molecular fingerprint for the drug in question.
Due to a pain medicine addiction for prescription opioids, Respondent had
been in a drug treatment program for several years prior to the random substance abuse
drug and alcohol test at issue in the instant case. As part of his treatment, he is subjected
6
to drug testing. On February 9, 2020, he was tested as part of his treatment, and that test
was negative for THC. According to the Respondent, on the following day, February 10,
2020, he went to BlueWells Family Pharmacy, Inc. and discussed his sleeping issues with
a pharmacist. As a result of this conversation and due to the pharmacist’s reassurance that
CBD oil would not result in a positive test for THC, Respondent purchased and used CBD
oil. On the following day, Respondent underwent a random substance abuse drug and
alcohol test, which forms the basis of the appeal in the instant case.
During Respondent’s testimony before the Board, it became apparent that he
was either not offered the opportunity to have his split sample tested or he misunderstood
and did not understand that he had that option. Thereafter, counsel for OMHST represented
that if the sample was still available for testing and if Respondent chose to have the sample
tested and it came back as negative, the OMHST would dismiss the case against
Respondent. Although Respondent initially indicated that he would like to have the split
sample tested (if it was available), he later changed his mind and waived his right to have
the split sample tested. 7
7
The relevant testimony was as follows:
Chair: Well, let’s come back to this. Mr.
Beavers, do you want – do you want the split sample
tested or not?
Mr. Beavers: Yeah, don’t worry about it, sir. That’s
fine. Don’t worry about it. It’s just too much of a
(continued . . .)
7
Thereafter, the Board recessed and then resumed the hearing and announced
that by a two-to-one decision, it found that the “evidence shows that the respondent
consumed a CBD product; that CBD is not a controlled substance under the statute; and
that CBD is a lawful, over-the-counter product to consume.” The Board further found that
the Respondent “consulted with a pharmacist in an effort to determine whether consuming
this particular product would show positive on a drug screen and was assured it would not.”
Finally, the Board found that the “MRO [medical review officer] in this case was not able
to – did not testify, was not able to testify that the testing mechanism used by –
headache for everybody and that’s fine. That’s okay. I
know what I –
Chair: Okay. You understand you have that right
–
Mr. Beavers: -- done.
Chair: You understand you have that right?
Mr. Beavers: Yes, sir.
Chair: You understand you have the right with –
as long as you pick a certified lab, the lab is entirely up
to you – is entirely in your discretion who does the test.
You understand that?
Mr. Beavers: Yes, sir. That’s fine.
Chair: And understanding all that, you wish to
give up or waive your right to have the split sample
tested?
Mr. Beavers: Yes, sir. Don’t worry about it.
8
methodology used by the lab in this matter was able to distinguish between THC and
CBD.”
The order of the Board was memorialized in its June 8, 2020 Decision, which
granted Respondent’s appeal and reinstated his mining certifications. The OMHST
appealed the Board’s decision to the Circuit Court of Kanawha County, and by Final Order
entered on November 10, 2020, the circuit court denied the OMHST’s appeal and affirmed
the Board’s Decision. This appeal followed.
II. STANDARD OF REVIEW
As is well-established,
[o]n appeal of an administrative agency from a circuit court,
this Court is bound by the statutory standards contained in
[West Virginia] Code § 29A-5-4(a) and reviews questions of
law presented de novo; findings of fact by the administrative
officer are accorded deference unless the reviewing court
believes the findings to be clearly wrong.
Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996). With these standards
in mind, we proceed to the parties’ arguments.
III. DISCUSSION
9
Respondent tested positive for THCA on his February 11, 2020 random
substance abuse drug and alcohol test. 8 From the beginning, Respondent has argued that
he tested positive for THCA because he used CBD oil on the day before his random drug
test and had unintentionally or unwillingly ingested THC. Because the testing in this case
cannot distinguish between CBD and THC, both the Board and the circuit court found that
the OMHST failed to meet its burden. Petitioner argues that the circuit court erred in
affirming the Board’s decision. 9
8
According to Respondent, he was informed of his positive result during a phone
call with Dr. Carasig on February 18, 2020.
9
In addition, we wish to acknowledge the amicus curiae brief submitted by the
Metallurgical Coal Producers Association. We value the Amicus Curiae Organization’s
contribution to this case and have considered its brief in conjunction with the parties’
arguments.
10
A. TESTING
The substance abuse screening policy at issue in this case became effective
on January 1, 2013. See W. Va. Code § 22A-1A-1 et seq. Pursuant to West Virginia Code
§ 22A-1A-1(a), employers of certified persons 10 are required to implement a random
substance abuse testing program that shall test for, at a minimum, the following ten
substances:
(A) Amphetamines;
(B) Cannabinoids/THC;
(C) Cocaine;
(D) Opiates;
(E) Phencyclidine (PCP);
(F) Benzodiazepines;
(G) Propoxyphene;
(H) Methadone;
(I) Barbituates; and
(J) Synthetic narcotics
Id. Persons engaging in certified employment are subject to their employer’s random
substance abuse testing program.
Before the Board, Respondent stipulated to the following: (1) he was working in a
certified position at the time of his random drug test on February 11, 2020; (2) he was
properly selected to undergo a random drug test; and (3) the collection procedures were
10
West Virginia Code § 22A-1-2 defines “certified person” and provides: “The term
‘certified person’, when used to designate the kind of person to whom the performance of
a duty in connection with the operation of a mine shall be assigned, means a person who is
qualified under the provisions of this law to perform such duty.”
11
proper. Further, judicial notice was taken that the urine specimen was tested by a laboratory
certified by SAMHSA. 11 For these reasons, OMHST did not call witnesses regarding these
issues.
The only witness called by the OMHST was Dr. Carasig, a medical review
officer. Dr. Carasig testified that she received and reviewed a positive lab result for
Respondent along with a custody and control form, which showed the chain of custody to
be intact. She also testified about a conversation with Respondent in which she informed
him of the positive result. Further, because Respondent did not have a valid medical
explanation for the positive result, she released his result as a positive test.
The Board relied heavily on Dr. Carasig’s testimony that the test did not
distinguish between THC and CBD, finding that “the Medical Review Officer was not able
to testify that the testing mechanism or methodology used by the testing laboratory could
distinguish between THC and CBD.” However, it is significant that Dr. Carasig essentially
discounted this distinction by testifying that the test is a “confirmed result used” for
detecting the “active THC constant.” Specifically, her testimony was as follows:
Chair Clint Smith: My question is you cannot testify that the
lab used a process or methodology that would distinguish
between THC and CBD.
West Virginia Code § 22A-1A-1(a)(1) and W. Va. Code R. § 56-19-7.1.2 require
11
SAMHSA certification.
12
Dr. Carasig: I don’t know of anything like that. All I can tell
you is that it’s a confirmed result used for Delta-9 THC which
is the active THC constant.
Mr. Boothroyd: Okay. So you wouldn’t be – so again, you
wouldn’t be able to tell whether it came from CBD oil, pot
brownie or some other manner; is that correct?
Dr. Carasig: Right. The lab doesn’t differentiate between
them. The active THC is what they look for what they call the
molecular fingerprint for the drug in question.
(emphasis added). 12
Importantly, Respondent did not properly challenge his test results. The
method to challenge laboratory test results, the medical review officer’s verification of the
laboratory test result or the chemical test of breath is found in West Virginia Code of State
Rules § 56-19-8 et seq. Under these rules, Respondent was required to notify the Director
of the OMHST, in writing, that he intended to challenge his test results or the medical
review officer’s verification of his test result at least fourteen days prior to the hearing
12
The dissent argues that Dr. Carasig testified before the Board of Appeals that the
drug test at issue in this case was unreliable because it could not distinguish between THC
and CBD. This is a mischaracterization of Dr. Carasig’s testimony. Rather, while Dr.
Carasig acknowledged that the testing method may not have been able to distinguish
between CBD and THC, the test unequivocally returned a positive THC result. As we have
explained herein, the source of that positive test result—whether legal or illegal—is
immaterial. While we understand the dissenters’ desire to implement testing procedures
that can distinguish between legal CBD and illegal THC, it is not the province of this Court
to require the OMHST to do so. To the extent that such testing procedures exist, the onus
is on the Legislature to direct the OMHST to use those procedures, should the Legislature
so desire.
13
date 13, and he failed to do so. Further, if he wished to challenge the lab results, he was
required to have his split sample tested at a SAMHSA certified laboratory, which he also
failed to do. 14 This information was provided to Respondent in the OMHST’s February
19, 2020 letter to Respondent. Further, as was previously noted, during the hearing before
the Board, the OMHST represented that if the split sample was still available for testing
and if Respondent chose to have the split sample tested and it came back as negative, the
OMHST would dismiss the case against Respondent.
13
West Virginia Code of State Rules § 56-19-8.2 provides:
Any person who intends to challenge the sample collection
methods, the laboratory test results, the medical review
officer’s verification of the laboratory test result or the
chemical test of breath, shall notify the Director of his or her
intent. The person shall submit the notification in writing,
either in person or by mail to the Director, at least fourteen (14)
days prior to the hearing date. The notification shall specify,
in detail, the challenge the person intends to make.
14
West Virginia Code of State Rules § 56-19-8.3 provides:
If the person submits notification in writing to the Director that
he/she intends to challenge the laboratory test results or the
medical review officer’s verification of the laboratory test
result, that person shall have the split sample tested, at his/her
expense at a SAMHSA certified laboratory and those results
verified by a medical review officer. The split sample results
and the results of the split sample verification by a medical
review officer shall be provided to the Director and the original
medical review officer. No other form of evidence shall be
admissible to challenge the laboratory test result of the medical
review officer’s verification of the laboratory test result.
14
Although Respondent initially indicated that he would like to have the split
sample tested (if it was available), he later changed his mind and waived his right to have
the split sample tested. Respondent, therefore, did not take the steps set out in the Code of
State Rules to challenge his positive test result. The OMHST was not required to call a
certifying scientist or a laboratory technician to affirm that the test results were true and
accurate. Pursuant to West Virginia Code of State Rules § 56-19-8.4:
If a person fails to comply with the notification requirements
of this section, then the sample collection methods, the
laboratory test results, the medical review officer’s verification
of the laboratory test result, or the chemical test of breath shall
be admissible as though the person and the Director had
stipulated to their admissibility.
Respondent’s failure to challenge the test results is dispositive on this issue.
The Board did not have the legal authority to disregard the laboratory test or to rely upon
Dr. Carasig’s testimony to create an exception or defense to the test that is found in neither
the statute nor the rules governing the testing and suspension process.
B. RESPONDENT’S DEFENSES TO POSITIVE TEST RESULT
We now shift our analysis to the question of whether Respondent’s claim of
CBD use constitutes a defense to his positive test. It simply does not. Respondent admits
that he consumed a CBD product and, as a result, he either unintentionally or unwillingly
ingested THC. Specifically, he alleges that he purchased and consumed a CBD product on
February 10, 2020, after he was assured by a pharmacist that the CBD product would not
have any impact on his drug screens. Before the Board, Respondent produced a letter from
15
Harold T. Wells, a registered pharmacist and owner of BlueWells Family Pharmacy, Inc.
In his letter, Mr. Wells indicated that Respondent purchased “the 2 oz. of the dietary
supplement Optivida Hemp Extract 540 from BlueWells Family Pharmacy, Inc.” Mr.
Wells further indicated that Optivida Health is “one of the most reputable processors of
Hemp Extract in the country,” and its “stated goal is for the CBD to be high and the THC
to be as close to zero as possible.” Mr. Wells was not called as a witness, and he did not
indicate in his letter that he or any other pharmacist at his store assured Respondent that
the CBD product would not have any impact on his drug screens. 15
The Board was persuaded by Respondent’s claims and supported its decision
to grant Respondent’s appeal and reinstate his mining certifications by finding that
Respondent “consulted with a pharmacist prior to consuming a CBD product and was
assured by the pharmacist that the CBD product would not result in a positive drug test for
THC.” In addition, the Board found that “the Medical Review Officer was not able to
testify that the testing mechanism or methodology used by the testing laboratory could
distinguish between THC and CBD.”
15
We are not unsympathetic to the claims of Respondent. We are mindful of his
participation in a rehabilitation program and his drug screens as part of that program. We
also note his testimony regarding the steps he took in an effort to try to make sure that CBD
use would not impact any of his drug screens. However, these claims do not provide a
defense to his positive drug test.
16
The Board is an administrative tribunal, and its power consists of only that
which is given to it by statute. In Francis O. Day Co., Inc. v. West Virginia Reclamation
Bd. of Review, 188 W. Va. 418, 424 S.E.2d 763 (1992), this Court stated:
Administrative agencies and their executive officers are
creatures of statute and delegates of the Legislature. Their
power is dependent upon statutes, so that they must find within
the statute warrant for the exercise of any authority which they
claim. They have no general or common-law powers but only
such as have been conferred upon them by law expressly or by
implication.
Id. at Syl. Pt. 1.
Although this may be the first case in which this Court has had the
opportunity to evaluate the “intent” argument as it relates to CBD products, this is not the
first time that this Court has been faced with the argument that the OMHST must prove
intentional consumption of marijuana. In Dean v. West Virginia Office of Miners’ Health,
Safety and Training, No. 15-0724 (W.Va. June 21, 2016) (memorandum decision), this
Court was faced with a certified person who alleged that he unknowingly consumed
marijuana brownies. In Dean, this Court examined the applicable statutes and rules and
noted that “[i]t is clear from the language of [West Virginia Code of State Rules § 56-19-
6.4.1.] that the only relevant inquiry is whether the certified individual tested positive for
a prohibited substance.” Id. at *2. In addition, this Court clearly stated that we have no
statute or rule that “require[s] [the OMHST] to prove intentional consumption of
marijuana.” Dean at *2.
17
The Coal Mine Safety Board of Appeals does not have the authority to treat
the consumption of a CBD product as a legal defense to a positive test for
cannabinoids/THC when neither West Virginia Code § 22A-1A-1 et seq. nor West Virginia
Code of State Rules § 56-19-1 et seq. provide for such a defense to an otherwise positive
test. Although the West Virginia Legislature authorized the sale of CBD products after
Dean was decided, the statutes and rules regarding the testing at issue in this case have not
been amended to permit CBD use as a defense.
West Virginia Code § 22A-1A-1(d)(1)(A) provides the only way to excuse
Respondent’s positive drug test. Employers shall notify the Director of “[a]ny positive
drug or alcohol test of a certified person. However, for purposes of determining whether a
drug test is positive the certified employee may not rely on a prescription dated more than
one year prior to the date of the drug test result.” Id. Dr. Carasig testified that the only
way for her to clear Respondent’s test would be if he had a prescription for “something like
Marinol or dronabinol,” which are “usually used for patients with complications from
conditions like HIV or cancer where they are used when they need to stimulate the
appetite.” No evidence was presented that Respondent had a prescription for any such
drug.
West Virginia Code § 22A-1A-1 et seq. is clear. Employers of certified
persons are required to implement a substance abuse screening policy and program that
18
shall test for certain substances. 16 Employers are required to notify the Director of certain
events as they relate to drug and alcohol tests. 17 For purposes of our review in the instant
case, Respondent’s employer was required to notify the Director, within seven days of
Respondent’s positive drug test. 18
Further, the Board was required to suspend
Respondent’s certification cards for a minimum of six months from the date of his positive
drug test. 19 “When a statute is clear and unambiguous and the legislative intent is plain,
the statute should not be interpreted by the courts, and in such case it is the duty of the
courts not to construe but to apply the statute.” Syl. Pt. 5, State v. General Daniel Morgan
Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).
A decision that permits CBD use as a defense to a positive drug test is
contrary to the statutory scheme enacted by the West Virginia Legislature. The OMHST
and amicus curiae argue that permitting CBD use as a defense would allow every miner
who fails a THC screen to avoid temporary suspension by simply arguing that he or she
used a CBD product, and we agree. If the West Virginia Legislature had desired to permit
CBD use as a defense to a positive drug test, it could have done so, either at the time it
passed the original testing statute, or when it authorized the sale of CBD products, but it
16
See W. Va. Code § 22A-1A-1(a).
17
See W. Va. Code § 22A-1A-1(d).
18
Id.
19
See W. Va. Code § 22A-1A-2(c).
19
has clearly not recognized any such CBD use defense. It is simply not within our purview
to act as a “superlegislature” and impose any such defense.
Before this Court, Respondent also argues that the OMHST had the burden
of showing that he “abused substances banned by the applicable statute and regulations.”
In support of this argument, Respondent argues that the OMHST failed to present evidence
that he consumed marijuana or that he was impaired on the date of his random drug screen,
and he is correct. However, Respondent fails to acknowledge that the OMHST was not
required to prove either of those things. According to Respondent, the drug screening
procedure is “designed to identify whether or not miners have been abusing either alcohol
or the other substances” identified in West Virginia Code § 22A-1A-1. In this regard,
Respondent believes that the OMHST had the burden to show that he actually “abused”
the substances identified in West Virginia Code § 22A-1A-1. We disagree.
Despite Respondent’s argument to the contrary, the substance abuse
screening policy and program contemplated in West Virginia Code § 22A-1A-1 et seq. is
absolutely designed to suspend and/or revoke the certifications of miners who have been
“determined to have a positive drug or alcohol test” as determined by the provisions of
West Virginia Code § 22A-1A-1 et seq. There is no requirement that the OMHST prove
that the certified person abuses alcohol or drugs. Further, Respondent’s argument that his
use of a CBD product is a defense because it is a legal, over-the-counter product is
misplaced. In addition to the ten specific drug-related substances set forth in West Virginia
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Code § 22A-1A-1, the statute also requires alcohol tests. As alcohol is also a legal product,
the statute clearly tests for legal products. Respondent has cited no legal authority that
would support his position that the mere fact that CBD is not, per se, illegal means that it
can be asserted as a defense to a positive THC testing result.
In summary, Respondent has attempted, through the numerous defenses he
has asserted, to shift the focus from the simple question on which this case rests: did he
have a valid positive cannabinoids/THC test result? The answer to that question is yes.
Therefore, because he has not successfully challenged the testing process or result, and he
has no valid prescription that would fulfill the one valid and allowable defense, the
statutory requirement that he be suspended is mandatory. Respondent essentially argues
that in order for his certification to be suspended, OMHST must show he illegally used
marijuana. No legal authority requires OMHST to make such a showing. By alleging that
his use of CBD is a defense to a positive cannabinoids/THC test, Respondent is attempting
to rewrite the statute to require that a test distinguish between THC and CBD. Neither the
statute nor the rules interpreting it require that the test make such distinction. Finally,
Respondent alleges that the mere fact that CDB products are not illegal prohibits his
suspension for a positive cannabinoids/THC test. Respondent cannot claim this defense,
not only because the statute and rules provide no such defense, but also because, as
illustrated by the fact that the list of substances for which a certified person is to be tested
includes such legal substances as alcohol, the test is not limited to substances that are, per
se, illegal.
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C. SUSPENSION
Finally, we turn to the issue of Respondent’s suspension. West Virginia
Code § 22A-1A-2(c) clearly requires the Board to suspend mining certifications “for a
minimum of six months” if a certified person is “determined to have a positive drug or
alcohol test as determined pursuant to the provisions of this article.” Id. The Board clearly
failed to follow this directive. For the reasons set forth above, the circuit court erred in
affirming the Board’s decision.
IV. CONCLUSION
Therefore, for the reasons set forth herein, we reverse the November 10,
2020, order of the Circuit Court of Kanawha County, and remand this action to the circuit
court with direction to reinstate the temporary suspension of the Respondent’s mining
certifications.
Reversed and Remanded.
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