52.1. A properly completed application must be received before the potential claim will be considered by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. A properly completed application must include 1) a completed WC-105 form; 2) a completed WC-205 form; 3) an ILO form properly completed by a certified "B" reader; and 4) a listing of all alleged exposures to harmful dust, including type of dust, and extent and duration of exposure with each named employer.52.2. If the employer submits credible evidence demonstrating that it has been in compliance with OSHA and/or MSHA permissible exposure levels, as determined by sampling and testing performed in compliance with OSHA and/or MSHA regulations for the dust alleged by the injured worker, then the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may consider that the dust exposure alleged by the injured worker does not suffice to satisfy the exposure requirements of W. Va. Code §§ 23-4-1(b) and 23-4-15(b) only for the period(s) covered by the sampling or testing. In order for the evidence to be deemed credible, it must be based upon regularly scheduled exposure samples from each work area where harmful exposure has been alleged, which samples will be obtained by certified industrial hygienists as defined by OSHA and/or MSHA regulations or government agencies, and the samplings must be obtained during the period for which the employer is seeking to avoid chargeability. The employer shall provide to all parties to the claim all discoverable communications to and from the industrial hygienist, and the entire test file, including the results of the industrial hygienist. In the absence of other relevant evidence, periods for which injured workers can demonstrate by credible evidence that the employer's sampling and test results do not accurately reflect conditions in the injured worker's work areas shall be included by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, for the period of dust exposure which the claimant has alleged to be harmful.52.3. Nonmedical hearing. Upon receipt of a proper application, employer's reports and investigation (if requested by the Commission or Insurance Commissioner, whichever is applicable), the Commission or Insurance Commissioner, whichever is applicable, shall determine the nonmedical questions, and shall notify all interested parties of the decision; Provided, in cases where a self-insured employer or private carrier is not requesting allocation, the self-insured employer or private carrier shall enter the nonmedical order. A properly completed application must be filed or the application shall be rejected. -- After the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, makes or has made a determination, any dissatisfied party may, within thirty (30) days after receipt of written notice of the Commission's, Insurance Commissioner's, self-insured employer's or private carrier's, whichever is applicable, decision, file objection thereto in writing, whereupon the Office of Judges will set a time and place for a hearing thereon. These hearings shall be subject to the provisions of the rules promulgated by the Office of Judges (Title 93, Series 1).
Upon completion of the nonmedical hearing, the Office of Judges will enter a final nonmedical ruling and shall notify the injured worker and employer of this decision. The Office of Judge's final nonmedical ruling will be subject to appeal to the Workers' Compensation Board of Review.
52.4. Occupational pneumoconiosis board hearing. Following issuance by the Commission or Insurance Commissioner, whichever is applicable, of a ruling on the nonmedical issues, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall refer this claim to the Occupational Pneumoconiosis Board: Provided That, the requirements of W. Va. Code § 23-4-15b have been satisfied. In the case of such reference, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will notify the injured worker to appear before the Board for an examination and shall state the date, time, and location thereof. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will notify the employer or employers of the date, time and place of the examination. A quorum of the Board will then proceed to hear and determine all medical questions relating to the claim.
At such hearing the injured worker and each employer must produce as evidence all reports of medical and X ray examinations that may be in their respective possession or control showing the past or present condition of the employee.
52.5. Report of Occupational Pneumoconiosis Board. Upon completion of the hearing the participating members of the Occupational Pneumoconiosis Board shall prepare a written report to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, setting forth their findings and decision, and shall prepare a sufficient number of signed copies of report so that the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may file one in his office, send one to the injured worker and one to each employer interested in the claim.
52.6. Objections. Any interested party who objects, in whole or in part, to the findings and conclusions of the Board may, within the statutory period after the mailing to him of the copy of the report, or within such additional time as may be allowed by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, for good cause shown, file with the office of judges his written objections, specifying the particular statements of the Board's findings and conclusions to which the party objects. Upon receipt of such objection, the office of judges shall set a time and place for a hearing thereon and shall notify each interested party and each member of the Board of the time and place of the hearing.
52.7. Hearings on protest. Hearings held upon protest to the findings of the Occupational Pneumoconiosis Board will be held by the office of judges in Charleston unless the office of judges shall otherwise direct. The procedure in protest hearings shall be governed by the provisions of the procedural rules of the office of judges, except that evidence shall be limited to medical testimony and other competent medical evidence, unless the Board has passed upon non-medical aspects under the Commission's or Insurance Commissioner's, whichever is applicable, referral. Cross-examination of the Board shall be limited to those members who examined the injured worker. However, if the office of judges decides that testimony of other members of the Board is necessary or desirable, the office of judges may permit such testimony at the protest hearing.
52.8. Employer's Request For Medical Examination. An employer's request for medical examination of the injured worker by a physician of its choice, shall be rejected if filed before the findings of the Occupational Pneumoconiosis Board have been transmitted to the injured worker and the employer. Such requests shall be entertained only when filed subsequent to the transmittal of the Occupational Pneumoconiosis Board findings.
52.9. Standards for medical examination. a. The following standards specify examination and evaluation criteria to guide the Occupational Pneumoconiosis Board in its examination and evaluation of injured workers, and to guide other physicians and medical technicians who conduct examinations and evaluations of injured workers on behalf of such injured workers and their employers. These standards are established for the further purpose of ensuring that uniform procedures are used in administering and interpreting ventilatory function tests and arterial blood gas studies and that the best available medical evidence will be obtained in support of a claim for occupational pneumoconiosis benefits. The physician supervising any such testing and/or the technician administering any such testing will so indicate by signing the reports. Any report of test results submitted to the Occupational Pneumoconiosis Board must affirmatively state, as to each of the standards individually, the fact that the particular test or study was performed in compliance with that standard. In the event that any such report fails to affirmatively show compliance with these standards, the Occupational Pneumoconiosis Board may disregard all or any part of such test or study or give such test or study such weight as the Board believes it deserves.b. When two (2) or more ventilatory function tests performed in reasonably close proximity in time produce differing but acceptable results, the Commission or Insurance Commissioner, whichever is applicable, at the request of the Occupational Pneumoconiosis Board, may direct the parties to furnish additional evidence and/or order additional testing at the laboratory utilized by the Occupational Pneumoconiosis Board or other laboratories, all for the purpose of determining whether any of the results are unreliable or incorrect or are clearly attributable to some identifiable disease or illness other than occupational pneumoconiosis.c. When blood gas studies are performed and abnormal values are obtained and thereafter new blood gas studies are performed and normal or significantly higher values are further obtained, the Commission or Insurance commissioner, whichever is applicable, at the request of the Occupational Pneumoconiosis Board, may direct the parties to furnish additional evidence and/or order additional studies at the laboratory utilized by the Occupational Pneumoconiosis Board or other laboratories, all for the purpose of determining whether any of the values are unreliable or incorrect or are clearly attributable to some identifiable disease or illness other than occupational pneumoconiosis.d. As used herein, the following terms shall have the meanings indicated: 1. FVC -forced vital capacity -- Volume of air that can be forcefully exhaled from the lungs after a maximal inspiration.2. FEV1 -forced expiratory volume in one (1) second -- Volume of air that can be exhaled forcefully from the lungs in one (1) second after a maximal inspiration. 3.. FEV3 -forced expiratory volume in three seconds -- Volume of air that can be exhaled forcefully from the lungs in three (3) seconds after a maximal inspiration.4. FEV1FEV -forced expiratory volume (timed) to forced expiratory volume. -- A ratio expressed as a percentage.5. MVV -maximal voluntary ventilation -- The volume of air that can be exchanged over a unit period of time, usually performed for twelve (12) to fifteen (15) seconds and converted to liters per minute.6. BTPS -- Body temperature, ambient pressure, saturated with water.7. Kpm -kilopond meter -- The amount of work required to lift one (1) kilogram one (1) meter.8. NIOSH -- National Institute for Occupational Safety and Health.9. BOARD -- West Virginia Occupational Pneumoconiosis Board.10. NBRC - National Board for Respiratory Care11. CPFT - Certified Pulmonary Function Technician12. RPFT -- registered Pulmonary Function technologist13. Raw - Airway resistance14. DLCO - Carbon monoxide diffusing capacity of the lungs15. DL/VA - Carbon monoxide diffusing capacity per unit of alveolar volume16. VA - Alveolar volume (single breath equivalent to TLC)17. TLC - Total Lung Capacity (measured by plethysmograph, Nitrogen washout, or helium dilution.e. Ventilatory function tests. 1. Instruments to be used for the administration of ventilatory function tests should conform to the following criteria: A. The instrument must be accurate within plus (+) fifty (50) ml or within plus (+) three percent (3%) of reading, whichever is greater.B. The instrument must be capable of measuring vital capacity from zero (0) to seven (7) liters BTPS.C. The instrument must have a low inertia and offer low resistance to airflow such that the resistance to airflow at twelve (12) liters per second must be less than 1.5 cm H20/liter/second.D. The zero time point for the purpose of timing the FEV1 must be determined by extrapolating the steepest portion of volume-time curve back to the maximal inspiration volume or by an equivalent method.E. Instruments incorporating measurements of airflow to determine volume must conform to the same volume accuracy stated in Subdivision 52.9.e.1.A of this regulation when present with flow rates from at least zero (0) to twelve (12) liters per second.F. The instrument or user of the instrument must correct volumes to body temperature saturated with water vapor (BTPS) under conditions of varying ambient spirometer temperatures and barometric pressures.G. The instrument used must provide tracings of volume versus time during the entire forced expiration. Flow versus volume tracings may be added. If MVV maneuver is performed, the volume versus time tracings must also be provided. Such tracing must be furnished to the Board with the test results. Volume Scale: When a volume - time curve is plotted or displayed, the volume scale must be at least: 10 mm/L (BTPS). Time scale: at least 10 mm/S. No results will be considered by the Board unless they are accompanied by the corresponding (minimum 3) tracings. Tracings are to determine whether the subject has performed the test properly. The tracing must be of sufficient size that hand measurements may be made within the requirement of paragraph 1A above.H. The instrument must be capable of accumulating volume for a minimum of ten (10) seconds after the onset of exhalation.I. The forced expiratory volume in one (1) second (FEV1 measurement must comply with the accuracy requirements stated in Subdivision 52.9.e.1 of these Regulations; that is, the FEV1 must be accurately measured to within plus (+) fifty (50) ml or within plus (+) three percent (3%) of reading, whichever is greater.J. The instrument must be capable of being calibrated in the field with respect to the FVC and time scales. This calibration of the FVC may be done either directly or indirectly through volume and time base measurements. The volume calibration source must provide a volume displacement of at least three (3) liters and must be accurate to within plus (+) thirty (30) ml.K. For measuring maximum voluntary ventilation (MVV), the instrument must have a response which is flat within plus (+) ten percent (10%) at flow rates up to twelve (12) liters per second over the volume range. The time for exhaled volume integration or recording must be no less than twelve (12) seconds and no more than fifteen (15) seconds. The indicated time must be accurate to within plus (+) three percent (3%). A recording of the spirometer tracing is required, and the volume sensitivity must be such than ten (10) mm or more deflection corresponds to one (1) liter volume.2. The administration of ventilatory function tests must conform to the following criteria: For ascertainment of the FEV1 and FVC, a nose clip or alternative must be used. The procedures must be explained in simple terms to the subject who shall be instructed to loosen any tight clothing and sit or stand in front of the apparatus. Although the subject may sit or stand, care should be taken on repeat testing that the same position is used. Sitting position will be considered the preferred method although standing may be utilized for obese patients and notations made as to the position. Particular attention must be given to insure that the subject's chin is slightly elevated with the neck slightly extended. The subject must be instructed to make a full inspiration, either from the spirometer or the open atmosphere, and then blow into the apparatus, without interruption, as hard, fast, and completely as possible. At least three (3) forced expirations must be carried out. During the maneuvers, the subject must be observed for compliance with instructions. The expirations must be checked visually for reproducibility by examining the flow-volume or volume-time tracings. The effort shall be judged unacceptable and cannot be considered in evaluating pulmonary functional impairment when the subject:
A. The largest and second largest FVC are not within 7% of each other; orB. The largest and second largest FEV1 are not within 7% of each other; orC. Has not continued the expiration for at least six (6) seconds or until an obvious plateau in the volume-time curve has occurred. Exceptions: Young adults and patients with restrictive defects tend to plateau early. Reduced FVC with a normal or high FEV1/FVC ration is suggestive of restriction, although measurement of TLC is required to confirm restriction; orD. Tracings indicate cough prior to the FEV1 measurement; orE. Early termination of flow (glottis closure); orF. Has an unsatisfactory start of expiration, one characterized by excessive hesitation (or false starts), and therefore did not allow back extrapolation of time zero (0) (extrapolated volume on the volume-time tracing must be less than ten percent (10%) of the FVC); orG. Has an excessive variability between the three (3) acceptable curves. The variation between the two (2) largest FVCs and the two (2) largest FEV1s.H. Predicted values are derived from Kory's Nomogram (1961).3. For ascertainment of the MVV, the subject must be instructed before beginning the test that he or she will be asked to breathe as deeply and as rapidly as possible for approximately twelve (12) seconds. Sitting position will be considered the preferred method although standing may be utilized for obese patients and notations made as to the position. Care shall be taken on repeated testing that the same position is used. The test may be performed with the subject in either a sitting or standing position. Care shall be taken on repeat testing that the same position is used. The subject should breathe normally into the mouthpiece of the apparatus for ten (10) to fifteen (15) seconds to become accustomed to the system. The subject should then be instructed to breathe as deeply and as rapidly as possible and shall be continually encouraged during the remainder of the maneuver. The subject shall continue the maneuver for twelve (12) seconds. Only one (1) MVV maneuver is necessary. The effort must be judged unacceptable and cannot be considered in evaluating pulmonary functional impairment when the patient:A. Has not maintained consistent effort for at least twelve (12) to fifteen (15) seconds; orB. Has coughed or closed his glottis; orC. Has an obstructed mouthpiece or a leak around the mouthpiece (obstruction due to tongue being placed in front of mouthpiece, false teeth falling in front of mouthpiece, etc.); orD. Has an excessive variability between the three (3) satisfactory curves. The variation between the three (3) satisfactory tracings must not exceed ten percent (10%) and should approximate forty (40) times the greatest FEV1 volume.4. A calibration check must be performed on the instrument each day before use, using a volume source of at least three (3) liters, accurate to within +one percent (1%) of full scale. The room air in the syringe must be introduced into the spirometer once with a flow rate of approximately five tenths (5/10) liters per second (six (6) seconds emptying time with a three (3) liter syringe) and once with a higher flow rate of approximately three (3) liters per second (one (1) second emptying time with a three (3) liter syringe). The volume measured by the spirometer must be between two and nine tenths (2.90) and three and one tenth (3.10) liters for both trials. Accuracy of the time measurement used in determining the FEV1 must be checked using the manufacturer's stated procedure and must be within +three percent (3%) of actual. The procedure described herein must be performed as well as any other procedures suggested by the manufacturer of the spirometer being used.5. The first step in evaluating a spirogram for the FVC and FEV1 shall be to determine whether or not the subject has performed the test properly or as described in Subdivision 52.9.e.2 of this regulation and the forced expiratory volume. From the three (3) satisfactory tracings, the forced vital capacity (FVC) and the forced expiratory volume in one (1) second (FEV1) must be measured and recorded. The largest FVC and the largest FEV1 must be used in the analysis, corrected to BTPS.6. Only MVV maneuvers which demonstrate consistent effort for at least twelve (12) seconds shall be considered acceptable. The largest accumulated volume for a twelve (12) second period corrected to BTPS and multiplied by five (5) shall be reported as the MVV. f. Single Breath Carbon Monoxide Diffusion Capacity1. For ascertainment of the Single Breath DLCO, the subject must be instructed before beginning the test that he or she will be asked to breath normally through the system for a number of breaths to achieve stable tidal breathing, then exhale to the level of residual volume (RV). At that point, the patient will be instructed to inhale quickly to the level of Total Lung Capacity (TLC) and hold their breath for approximately 10 seconds, then exhale for sample collection in the instruction of the technician administering the test.2. Single breath carbon monoxide diffusion capacity tests are performed using the Jones-Meade method of measurement.3. Predicted values are derived from Crapo (1981) nomogram.4. Total Hemoglobin and Carboxyhemoglobin are to be reported. Subjects with anemia will have results corrected to hemoglobin of 14.6 (males) and 13.4 (females).5. IVCs from each acceptable maneuver shall be reported.6. Reports will include DLCO, Alveolar Volume (VA) and DL/VA.7. At least two (2) maneuvers are to be carried out. During the maneuvers, the subject must be observed for compliance of instructions. The effort(s) shall be judged unacceptable and cannot be considered in evaluating pulmonary function impairment when the subject: A. IVCs do not achieve 85% of previously measured vital capacity.B. Actual DLCO measurements are not within 3 ml or 10% whichever is larger.C. IVCx (SVCs) are not reported for each acceptable maneuver.D. Inspiratory time exceeds 2.5 seconds.E. Breath hold time is less than 9 seconds or exceeds 11 seconds.F. Sample is not obtained within 4 seconds after breath hold.G. Carboxyhemoglobin is not reported or value is 3.1% or higher.g. AIRWAY RESISTANCE (Raw) 1. Airway resistance measurement will be measured using a body plethysmograph. For ascertainment of the Raw, the subject must be instructed before beginning the test that he or she will, after being sealed in the plethysmograph, be asked to breath normally while temperature equilibration occurs and then to hold cheeks with hands and gently pant while open and close shutter measurements are taken.h. Arterial blood gas studies. 1. In order to ensure comparability of data obtained in arterial blood studies, the following guidelines should be observed:A. The puncture site should be infiltrated with a local anesthetic to minimize pain and arterial spasm.B. The barrel of the syringe used to draw the blood sample should contain a coating of lithium heparin. If wetted syringes are used, the excess heparin must be expelled just prior to obtaining the blood sample.C. The subject should be allowed to rest while breathing room air for fifteen (15) minutes prior to drawing the sample.D. Resting blood samples should be drawn with the subject in the sitting position. If supine position is necessary, a notation is to be made on the report.E. On occasions when the subject is unable to be exercised due to physical impairments; i.e., heart disease, artificial leg, etc., a resting sample of arterial blood may be drawn by direct puncture with a twenty-twenty-five (20-25) gauge needle and a heparinized syringe.F. Blood samples must be discarded if contaminated by an air bubble.G. All blood samples should be analyzed immediately (less than ten (10) minutes). If not, the sample should be placed in ice water slush for up to 1 hour. If the analysis is not performed within ten (10) minutes, the metabolic activity of the cells in the blood will cause the p02 to fall and the pC02 to rise.H. If an exercise sample is to be obtained, a plastic catheter may be inserted into the radial or brachial artery for both the resting as well as the exercise sample. Single stick exercise samples may also be obtained if drawn during the last 30 seconds of exercise. Any variation should be so noted.I. Exercise must be accomplished by having the subject pedal the bicycle ergometer at a rate of fifty (50)-sixty (60) revolutions per minute against a resistance of seventy-five (75) Watts or four hundred fifty (450) Kilopond Meters (Kpm) per minute for a period of five (5) minutes. A treadmill may be used, and when used, exercise must be done at two (2) mph and ten percent (10%) grade. During the last twenty (20) seconds of the fifth minute of exercise, the exercise sample must be drawn into a heparinized syringe and the pulse and respiration rates noted. If an added level of exercise is performed, this must be done at one hundred twenty (120) Watts on the bicycle, or on the treadmill at two and five tenths (2 5/10) mph and twelve percent (12%) grade. Exercise testing beyond the level set forth herein shall be considered to be measurements of physical conditioning rather than of blood gas transfer abnormalities due to occupational pneumoconiosis. The EKG leads are then removed and the subject allowed to sit on a chair while the catheter is removed. Pressure must be held at the site of arterial cannulation for five (5) minutes, and if there is no bleeding or hematoma present, a compression bandage must be placed on the radial artery. This bandage must be left in place for four (4) hours. After about fifteen (15) minutes of observation, the subject will be allowed to leave. The arterial blood sample should be drawn while exercise continues, not following cessation of exercise.J. EKG monitoring with a single lead should take place during exercise to determine the heart rate. It should be noted that this is not an EKG Stress Test.K. The report should indicate the place, date and time of the study, altitude of the testing site and barometric pressure at the testing site on the day of the testing, name and claim number of the subject, name of any assisting personnel, name and signature of the supervising physician, duration and type of exercise (if performed), pulse rate and respiration at the time the blood sample was drawn, and whether analysis equipment was calibrated before each test.2. It is recognized that arterial blood gas studies done in laboratories throughout this state are obtained at different altitudes. Only by "Standardizing" for altitude can an equitable assessment be made of impairment when values of arterial oxygen are being measured at remarkably different altitudes. Therefore, the results reported from laboratories should include the name of the laboratory and the date and time of the testing, altitude of the laboratory and barometric pressure at the laboratory on the day the samples were collected. The Occupational Pneumoconiosis Board will evaluate the arterial blood gas values by converting those values to the average altitude of Charleston, West Virginia. For this purpose, it shall be sufficient to add one (1) mmHg to each arterial oxygen tension for each three hundred (300) feet or fraction thereof that the testing laboratory is located above the average altitude of Charleston, because the relationship of barometric pressure (altitude) and alveolar oxygen is approximately linear up to four thousand (4,000) feet as long as the subject breathes room air. As an example, Bluefield is located approximately two thousand six hundred (2,600) feet above sea level. Charleston is approximately six hundred (600) feet above sea level. Thus, arterial oxygen values obtained in Bluefield should have 6.67 mmHg added to them before applying the table to them to obtain "percent impairment". The calculations are as follows:
"Bluefield (2,600') minus Charleston (600') equals 2,000' differential
2,000' divided by 300' altitude equals 6.67 multiplied by 1 mmHg per 300' altitude equals 6.67 mmHg"
i. See the attached Table 85-20A, "Impairment of Pulmonary Function."52.10. Treatment Issues The follow ing services may be provided without prior authorization if carried out under the standards referenced and if the service is documented as to its medical necessity.
W. Va. Code R. § 85-20-52