dissenting:
The majority finds that, because a final determination of the petitioner’s degree of impairment had not been made when the emergency rule went into effect, the petitioner did not have any rights which had become vested by that date and, thus, application of the new rule to his claim was not retroactive within the meaning of Size-more and Charles.
The petitioner filed his application for disability benefits on April 14, 1983. The commissioner made her nonmedical finding of fact eleven months later, on March 19, 1984. The board’s evaluation took another ten months. Thus, it was more than two years after he filed his initial application before the petitioner had the opportunity to present the results of Dr. Rasmussen’s examination to the board.
Around the time the petitioner filed his initial application, this Court was considering Meadows v. Lewis, 172 W.Va. 457, 307 S.E.2d 625 (1983). In that decision we noted that the workers’ compensation laws were “designed to compensate injured workers as speedily and expeditiously as possible in order that injured workers and those who depend upon them for support shall not be left destitute.” Id. at 638; see W.Va.Code § 23-5-3a (1985 Replacement Vol.). We found that the commissioner frequently failed to act with the speed contemplated by the statute and our decision required her to take the necessary steps to comply with the statute.
Unfortunately for the petitioner in this case it took the commissioner nearly two years after our decision in Meadows to promulgate regulations establishing time limits for the administrative processing of occupational pneumoconiosis claims. Legislative Rules, Workers’ Compensation Commissioner, Title 85 (1985). Under these regulations, the commissioner’s nonmedical ruling is due within fifteen days from the receipt of the prescribed forms. Id. at § 2.2. The board’s evaluation must then follow within sixty days. Id. at § 4.4C. A protest hearing must be held within thirty days from the receipt of the protest. Id. at § 7.2. These regulations and the time frames included in them were not the result of new requirements imposed by this Court in Meadows. They were required by the Workers’ Compensation Act. See W.Va.Code § 23-1-13 (1985 Replacement Vol.). Given the two year delay faced by the petitioner, there is little doubt that he was denied his right to have his application processed expeditiously.
Under the regulations the petitioner’s protest hearing would have been held some time in the late summer or early autumn of 1983. Of course, the emergency rule had not been issued at that time. Thus, Dr. Rasmussen's findings would have been evaluated according to the tables utilized by the board in 1983, which indicated a pulmonary impairment of between fifteen and twenty percent.
If the commissioner had performed her duties as required by statute, the petitioner’s rights would have been vested in 1983 and he would currently be receiving the benefits due him. Instead, he is now twice the victim, once of occupational pneumoco-*477niosis, and now of this Court’s decision to honor technicalities over equity.