                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
JAMES R. PACKARD,                                                              November 14, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0027 (BOR Appeal No. 2046247)
                   (Claim No. 2003027457)

WEST VIRGINIA OFFICE OF

INSURANCE COMMISSIONER

Commissioner Below, Respondent


and


GUY F. ATKINSON COMPANY,

THE DELTA STEEL CORPORATION, and

NOELL, INC.,

Employers Below, Respondent



                             MEMORANDUM DECISION
      Petitioner James R. Packard, by Robert L. Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Jon H. Snyder, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 16, 2011, in
which the Board reversed a July 25, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s March 25, 2011,
Order denying the reopening of the claim on a permanent partial disability basis. The Court has
carefully reviewed the records, written arguments, and appendices contained in the briefs, and
the case is mature for consideration.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited


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circumstances” requirement of Rule 21 (d) of the Revised Rules of Appellate Procedure and is
appropriate for a memorandum decision rather than an opinion.

        Mr. Packard was employed for approximately thirty years as an ironworker and welder
for Guy F. Atkinson Company, The Delta Steel Corporation, and Noell, Inc. In 2011, Mr.
Packard requested a reopening of his claim, for consideration of an additional permanent partial
disability award. The claims administrator denied the request. The Office of Judges reversed the
claims administrator and found that the preponderance of the evidence established a prima facie
cause to reopen the claim for consideration of permanent partial disability. Mr. Packard argues
that a prima facie cause to reopen his claim on a permanent partial disability basis has been
established. The West Virginia Office of Insurance Commissioner argues that the volume time
tracings available from Stonewall Jackson Memorial Hospital were unacceptable and should not
be used in evaluating pulmonary functional impairment. Therefore, a prima facie cause has not
been established. Mr. Packard’s pulmonary test on February 14, 2011, at Stonewall Jackson
Memorial Hospital indicated that his FEV1/FVC ratio was 57% with an MVV of 38%, which
showed a decrease from Mr. Packard’s 2003 test results of FEV1/FVC ratio of 75% and MVV of
93%. On March 21, 2011, Greg McLaughlin submitted a report and indicated that the volume
time tracings from Mr. Packard’s Stonewall Jackson Memorial Hospital pulmonary testing were
unacceptable based upon West Virginia Code of State Rules § 85-20 (2006), and could not be
used in evaluating pulmonary functional impairment.

        The Board of Review concluded that there was insufficient medical documentation to
justify reopening Mr. Packard’s claim on a permanent partial disability basis. Under Harper v.
State Workmen’s Compensation Commissioner, 160 W. Va. 364, 234 S.E.2d 779 (1977), for a
claimant to reopen a claim, he must show any evidence which would tend to justify, but not
compel the inference that there has been a progression or aggravation of their former injury. The
Office of Judges noted that the Stonewall Jackson Memorial Hospital pulmonary test established
that Mr. Packard’s condition had progressed. It further noted that the accuracy of the Stonewall
Jackson Memorial Hospital pulmonary test is not in question; the only issue to be decided is
whether or not Mr. Packard has shown a prima facie cause to reflect a progression in his
condition. The Office of Judges held that the preponderance of the evidence established a prima
facie cause that Mr. Packard’s condition had progressed. We agree with the reasoning and
conclusions of the Office of Judges.

       For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision
of the Board of Review is reversed and remanded with instructions to reinstate the Order of the
Office of Judges dated July 25, 2011.

                                                                       Reversed and Remanded.

ISSUED: November 14, 2013



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CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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