                             STATE OF WEST VIRGINIA
                                                                                   FILED
                                                                                March 20, 2014
                          SUPREME COURT OF APPEALS                          RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA
THEODORE M. LATUSEK JR.,
Claimant Below, Petitioner

vs.)   No. 11-1546	 (BOR Appeal No. 2045781)
                   (Claim No. 940058016)

CONSOLIDATION COAL COMPANY MORGANTOWN OPERATIONS,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Theodore M. Latusek Jr., by Sue Anne Howard, his attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Consolidation Coal
Company Morgantown Operations, by Stephen G. Higgins, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated October 14, 2011, in
which the Board affirmed a March 10, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 23, 2010,
decision, denying payment of medical expenses, including medications, related to a lung
transplant. 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 no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Latusek filed a claim for occupational pneumoconiosis with the last date of exposure
of March 24, 1994, based on exposure to dust and particulates while he worked as a longwall
coal miner for Consolidation Coal Company. Even though Mr. Latusek’s claim was held
compensable on August 1, 1994, for occupational pneumoconiosis on a non-medical basis, the
extent to which his lung problems were work-related was the frequent subject of litigation. On
July 2, 2006, Mr. Latusek was admitted to University of Pittsburgh Medical Center for a single
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left lung transplant, which was performed the next day. Following the procedure several requests
were made to the claims administrator for payment of medical expenses, including medication
related to the procedure. On March 23, 2010, the claims administrator denied the request. The
claims administrator stated that West Virginia Code of State Rules § 85-20-9 (2006) required
that the surgery be preauthorized. The Office of Judges and the Board of Review affirmed the
claims administrator’s decision on March 10, 2011, and October 14, 2011, respectively, leading
to this appeal.

        The Office of Judges concluded that Mr. Latusek was not entitled to authorization and
payment of the medical expenses, including medications, related to his lung transplant surgery in
July of 2006. The Office of Judges found that Mr. Latusek had ample time to seek prior
authorization for a lung transplant. The Office of Judges found no evidence that Mr. Latusek had
sought authorization or that the claims administrator had granted authorization for the transplant
prior to the surgery. The Board of Review adopted the findings of the Office of Judges and
affirmed its Order.

       On appeal, Mr. Latusek challenged the validity of West Virginia Code of State Rules §
85-20-9, arguing that it was in conflict with West Virginia Code § 23-4-3(a)(2) (2005), which
provides for reimbursement for a treatment after the addition of a secondary condition.

        We agree with the conclusion of the Board of Review and the findings of the Office of
Judges. Mr. Latusek is not entitled to payment of medical expenses related to his lung transplant
surgery in July of 2006. There is no evidence in the record that Mr. Latusek complied with the
requirements of West Virginia Code of State Rules § 85-20-9. Mr. Latusek did not seek
authorization for his lung transplant prior to the procedure. Mr. Latusek has also not presented a
colorable argument that West Virginia Code of State Rules § 85-20-9 is invalid. There is nothing
in the record showing that any secondary condition has been added to this claim which would
trigger West Virginia Code § 23-4-3(a)(2) and entitle Mr. Latusek to post-treatment
reimbursement.

        For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.

                                                                                        Affirmed.

ISSUED: March 20, 2014

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