                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 7, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
WILLIAM L. HARRISON JR.,                                                      OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0217	 (BOR Appeal No. 2046349)
                   (Claim No. 2006065656)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

AMERICAN METER SOFTWARE CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner William L. Harrison Jr., by Robert M. Williams, 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 January 24, 2012, in
which the Board reversed an August 25, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s January 13, 2011,
decision denying Mr. Harrison’s request to have his claim reopened for an additional permanent
partial disability award. 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.

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        Mr. Harrison was a plant worker and construction installation supervisor for American
Meter Software Corporation for twenty-seven years. During this time he was exposed to the
hazards of inhaling small particles of dust and fibers which caused or perceptibly aggravated his
occupational pneumoconiosis. Based on x-rays, physical examinations, and ventilator studies, on
July 12, 2007, the Occupational Pneumoconiosis Board found that Mr. Harrison had 10%
pulmonary impairment. Mr. Harrison was granted a 10% permanent partial disability award
based on the Occupational Pneumoconiosis Board’s recommendation. But on September 30,
2010, another pulmonary function study was performed by Baptist Pulmonary Associates which
revealed higher levels of impairment than the prior testing. Mr. Harrison submitted a request to
have his claim reopened for an additional permanent partial disability award based the
pulmonary function testing. On February 28, 2011, Baptist Pulmonary Associates issued a
second pulmonary function study which also revealed higher pulmonary impairment levels. But
the claims administrator denied Mr. Harrison’s request for reopening, pointing out that the two
studies did not meet the validity criteria set forth in West Virginia Code of State Rules § 85-20­
52.9 (2006). The Office of Judges reversed the claims administrator’s decision on August 25,
2011, and granted Mr. Harrison’s request for reopening. But the Board of Review reversed the
Order of the Office of Judges and reinstated the claims administrator’s decision on January 13,
2011, leading Mr. Harrison to appeal.

       The Office of Judges concluded that Mr. Harrison had made a prima facie showing of an
aggravation or a progression of his permanent pulmonary impairment. The Office of Judges
found that the September 30, 2010, and February 28, 2011, pulmonary function studies showed a
prima facie case for reopening. The Office of Judges found that West Virginia Code § 85-20­
52.9 did not apply in this case.

       The Board of Review reversed the Order of the Office of Judges. The Board of Review
concluded that there was insufficient medical documentation to meet the test for reopening set
out in Bostic v. State Compensation Commissioner, 142 W. Va. 484, 96 S.E.2d 481 (1957) and
Harper v. State Workmen’s Compensation Commissioner, 160 W. Va. 364, 234 S.E.2d 779
(1977). The Board of Review found that the two pulmonary function tests from Baptist
Pulmonary Associates were not enough to justify reopening the claim because neither study met
the requirements for pulmonary testing under West Virginia Code of State Rules § 85-20-52.9.
The Board of Review found that the testing did not include tracing, that the results exceeded the
values shown in West Virginia Code of State Rules § 85-20-A (2006), and there was no
physician’s report included with the report of the study.

        We agree with the conclusions and findings of the Board of Review. Mr. Harrison has not
presented any evidence that tends to show a progression or aggravation of his compensable
injury because the pulmonary function tests that serve as the basis for his reopening request did
not comply with the testing requirements of West Virginia Code of State Rules § 85-20-52.9 and
should not be relied on to justify reopening. West Virginia Code of State Rules § 85-20-52.9
requires that the instruments used for pulmonary testing include tracings in order to determine
whether the subject performed the test properly. The regulation establishes a mandatory
minimum of three tracings. Since neither pulmonary study performed by Baptist Pulmonary

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Associates provided the required tracings, the tests cannot be considered. None of the evidence
Mr. Harrison has provided tends to show that his compensable injury has progressed.

        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: November 7, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Allen H. Loughry II

DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum




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