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
Care
11. CPFT - Certified Pulmonary
Function Technician
12. RPFT --
registered Pulmonary Function technologist
13. Raw - Airway resistance
14. DLCO - Carbon monoxide diffusing capacity
of the lungs
15. DL/VA - Carbon
monoxide diffusing capacity per unit of alveolar volume
16. 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 FEV
1 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; or
B. The largest and second largest
FEV1 are not within 7% of each other; or
C. 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; or
D. Tracings indicate cough prior to the
FEV1 measurement; or
E. Early termination of flow (glottis
closure); or
F. 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); or
G.
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; or
B. Has coughed or closed his glottis;
or
C. 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.);
or
D. 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 Capacity
1. 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.
