Skip Maine state header navigation

Agencies | Online Services | Help

WORKERS' COMPENSATION BOARD
Board of Directors’ Meeting
January 6, 2004

A meeting of the Workers’ Compensation Board of Directors was held on Tuesday, January 6, 2004 at the Board's Central Office in Augusta, Maine (AMHI Complex, Deering Building, Rm. 170). Chairman Koocher called the meeting to order at 10:48 a.m.

ROLL CALL

PRESENT: Gary Koocher, James Mingo, John Cooney, David Gauvin, Anthony Monfiletto, Rodney Hiltz, Patricia Lemaire, and Joan Kirkpatrick.

MINUTES

John Cooney MOVED TO APPROVE THE MINUTES OF DECEMBER 16, 2003; Anthony Monfiletto seconded. (withdrawn below)

Discussion:
Directors and Staff discussed the need for staff to review the tape recording of the last meeting to determine what portion of Director Monfiletto’s statement he made on the record, during the Personnel Subcommittee Report, has been omitted from the 12-16-03 minutes
(Mr. Monfiletto advised directors that the draft minutes before the Board are incorrect since staff has inadvertently omitted a portion of the statement he made for the record and asked staff to circulate an amended version with the verbatim language for the next meeting); whether minutes of Board meetings should be compiled in verbatim language and prepared as a transcript for Board review and final action (it was noted that minutes normally include verbatim statements only when directors specifically ask to be on the record); a director’s request and receipt of a transcript of an earlier set of minutes that were prepared by a transcription agency; staff amending the 12-16-03 minutes to include Director Monfiletto’s statement and circulating a revised version of the minutes for Board review and action at the next meeting and postponing action on the minutes of the last meeting to 1-20-04 in order to give staff an opportunity to review the tape recording of that meeting and to provide the Board with an amended version of the minutes (In response, Directors Cooney and Monfiletto withdrew their motion and second to the motion).

EXECUTIVE DIRECTOR REPORT

  1. 121st Maine Legislature: P. Dionne advised directors of the Legislature’s plans to convene its Second Regular Session on 1-7-04 and of the Labor Committee’s request for a report on the Governor’s progress measurements.

    Discussion:
    Directors and Staff discussed the Labor Committee’s initial plans with respect to discussing the Governor’s progress measurements and two carryover bills, LD’s 550 & 575, on 1-8-04 and the Committee’s most recent correspondence indicating the deliberations will take place on 1-15-04
    (Staff noted the Labor Committee is attempting to define what agreements, if any, have been reached on the issues facing the Board with respect to the appointment of hearing officers and 39-A M.R.S.A. &213) and whether Board members need to attend the Committee’s work session.

  2. Actuarial Contract Awarded to EPIC Actuaries: Following up on the Board’s 12-2-03 award of the Section 213 actuarial contract to EPIC Actuaries, Staff reported that the Bureau of Purchases’ Contract Review Committee is expected to approve the contract and noted the actuarial firm will be presenting its findings and recommendations to the Board in late February or early March.

    Discussion:
    Directors and Staff discussed the Board awarding the Sec. 213 actuarial contract to EPIC Actuaries
    (Staff advised directors that the contract has been forwarded to the Bureau of Purchases’ Contract Review Committee for their review and noted the Bureau expects the Committee to approve the contract); EPIC Actuaries providing the Board with its report in February or March; whether EPIC Actuaries will be including an industry mix in their actuarial findings and recommendations (In response to Director Monfiletto’s inquiry as to what instructions, if any, were given to EPIC Actuaries as it relates to including data on industry mix in their study, Staff reported that they provided EPIC Actuaries with information that reflected the language in the statute and commented that a discussion arose during the interview on the matter at which time the actuarial firm was advised of the difficulties and confusion with whether data on industry mix should be included in their study and findings. Director Monfiletto then asked Staff and directors how the Board will proceed if it receives a report that does not include the data. In response, Staff stated the Board will need to determine how it will proceed at that time); actuarial firm using information currently available to them and the firms making various assumptions when performing their work, and whether the Board will return EPIC’s actuarial report if it does not include industry mix data and/or if it does not follow the language of the statute or Section 213 RFP.

  3. Tri-Agency Annual Report: In accordance with a mandate that the W.C.B., in consultation with the Superintendent of Insurance and Director of the Bureau of Labor Standards, submit an Annual Report to the Governor and Legislative Committees on Labor and Banking & Insurance by February 15 of each year,
    P. Dionne circulated the WCB’s portion of the tri-agency report and asked directors to contact him with any comments and/or proposed revisions to the draft report which will be finalized and combined with reports from the Bureau of Insurance and Bureau of Labor Standards for submission of a final report to the Legislature on or before 2-15-04.

  4. Coverage Matter (Alley v. Cormier and Worldwide Personnel Services): After advising directors of a case pending at dispute resolution that involves Worldwide Personnel Services, MEMIC and Gallagher-Bassett Insurance Company to ascertain the party responsible for coverage in the matter, P. Dionne reported that a mediation conference was held in the case of Alley v. Cormier and Worldwide Personnel Services and stated the parties were unable to reach an agreement on coverage at that time.

    Discussion:
    Directors and Staff discussed the Board holding a mediation conference in the Alley case on 12-16-03 at which time the parties were unable to reach an agreement; MEMIC and Gallagher-Bassett being interested parties in the case since both of them filed a Notice of Controversy form with the Board; Worldwide Personnel Services leasing employees to the employer who was working under the assumption that there was a workers’ compensation policy in effect at the time, which has yet to be determined; the Alley case being expedited so a determination can be made as to coverage; the Bureau of Insurance currently considering the renewal of Worldwide’s certification as a leasing company which has to be renewed prior to 1-31-04; Worldwide Personnel Services having numerous policies covering a number of employers which are not employer specific
    (Staff noted that it has been difficult to ascertain whether coverage was in place at the time of Mr. Alley’s injury because of the numerous policies); the employer assuming the leasing company had obtained workers’ compensation coverage who later discovered there may not have been coverage and that he may be liable for injuries sustained by the employee; Board Staff being advised that the Bureau of Insurance is also looking into the matter; MEMIC providing some coverage at one point, which has lapsed; Gallagher-Bassett being involved at one point as a third-party administrator (Staff noted Gallagher-Bassett has indicated that they were not the carrier at the time of the injury); the issue of coverage being determined after a formal hearing takes place on the case; the worker advocate being instructed to file a petition against all of the parties involved so that a representative from each of the parties can be at the formal hearing, which will provide the hearing officer with the entity’s respective positions in order to make a determination as to coverage and the party responsible for the claim and the Bureau of Insurance reviewing Worldwide Personnel Services’ certification annually.

  5. Chapter 425 Commission Update: P. Dionne reported that the Chapter 425 Commission concluded its deliberations on 11-17-03, advised directors that T. Collier and D. Friedman are preparing a draft report for the Committee’s review and noted a final report will be presented to the Labor Committee.

  6. Contract Hearing Officer J. Finn: Directors were advised that J. Finn has completed the work outlined in her contract.

    Discussion:
    Directors and Staff discussed J.Finn’s final decision being rendered in the Rizzo v. City of Portland case; the Board possibly asking J. Finn to handle the Rizzo case if it is appealed to the Law Court and remanded back to the Board for further proceedings (Staff noted the Board also has the option of assigning the case to another hearing officer); J. McCurry completing his contractual work and possibly needing to rule on Motions for Findings of Fact and Conclusions of Law that are received in some of those cases, and H. Johnson completing nearly all of her cases and of her plans to rule on the Motions for Findings of Fact and Conclusions of Law filed in some of the cases.

GENERAL COUNSEL REPORT

  1. WCB Draft Rule Chapter 3 (Draft Proposal on Electronic Filings): Following up on the Board’s 10-7-03 approval of the Chapter 425 Committee’s proposed rules regarding electronic filings, J. Rohde announced that the Board will be holding a public hearing on its proposed amendments to Chapter 3 on 1-8-04 and remarked that the Board will accept written comments on the proposed electronic filing rule until the close of business on 1-20-04.
  2. Requests for Extension of Benefits Due to Extreme Financial Hardship, Pursuant to Section 213(1): J. Rohde reported that the Board will be holding deliberations this afternoon on the case of Frederick Starbird v. City of Portland and inquired of directors how they would like to proceed with scheduling deliberations on the three remaining cases that have been filed under 39-A M.R.S.A. &213(1).
  3. Discussion:
    Directors and Staff discussed the Board having the authority to assign the pending cases to a panel of three hearing officers; Staff scheduling one case following the Board’s upcoming meetings until all three cases have been heard; the General Counsel providing the Board with a brief memo on the three cases to assist the Board in determining how best to handle the pending hardship cases, and the Board taking into account the current situation with the hearing officers prior to assigning the cases to a panel of hearing officers.

  4. Law Court Decisions (Donald Little v. Knowlton Machine Company, et al and Norman McNally v. Douglas Brothers, Inc.): Directors received a copy of the Law Court’s 12-23-03 decision in the McNally case and a copy of the Court’s 1-6-04 decision in the Little case. Staff informed the Board that the Law Court vacated both cases and remanded them back to the Board for further proceedings.

    Discussion:
    Directors and Staff discussed the McNally case which involved an employee who suffered the amputation of a portion of three fingers
    (Staff noted the issue on appeal was whether Mr. McNally was entitled to specific loss benefits for the total loss of his fingers where his loss involved the first phalange and 10% of the middle phalange of his fingers and commented that the hearing officer determined that in order for it to be considered a loss of an entire finger an employee must suffer the loss of the entire second phalange. Staff remarked that the Court disagreed and said that the loss of any portion of the second phalange is the loss of more than one phalange and awarded specific loss benefits for the loss of three entire fingers); the Law Court’s 1-6-04 decision in the case of Donald Little v. Knowlton Machine Co., et al (Staff advised directors that the Little case involved a decision issued by a former hearing officer and informed the Board a hearing was held in February of 2003 and remarked that the parties in that case received a letter from the Executive Director in January advising them of the uncertainty as to the employment status of the hearing officer and giving the parties 10 days to object to the case being heard by the hearing officer. Mr. Rohde explained that the parties did not object to the hearing officer handling the case within the 10 days but that the employer filed an objection 30 days later which the Chief Hearing Officer overruled, and stated the parties had the ability to proceed under &314 with respect to having the case heard by an arbitrator. Mr. Rohde concluded his summary on the case by advising directors that the Court determined that the hearing officer did not have de facto authority or de jure authority to issue a decision in the case and vacated the decision, and remarked that the other issues raised during the appellate process were the 14-day issue and the statute of limitations which were not addressed by the Court) and the untimely objection in the Little case not having an impact on the outcome of the Court’s ruling.

SUBCOMMITTEE REPORTS

  1. Personnel Subcommittee: Personnel Subcommittee Member P. Lemaire voiced the following motion in support of appointing Hearing Officer Elwin for six months, beginning on 1-1-04, and Subcommittee Member R. Hiltz then apprised the Board of the Subcommittee’s deliberations of this morning on the two vacant hearing officer positions currently being held by Staff Members R. Dunn and M. Stovall.
  2. Patricia Lemaire MOVED TO REAFFIRM THE BOARD’S UNANIMOUS
    ACTION TAKEN BY E-MAIL OR LETTER ON DECEMBER 22, DECEMBER 23 AND DECEMBER 24 TO APPOINT ELIZABETH ELWIN FOR SIX MONTHS (JANUARY 1, 2004 THROUGH JUNE 30, 2004) TO WORK ON PENDING CASES; James Mingo seconded.

    Discussion:
    Directors and Staff discussed Chairman Koocher’s comments regarding his plans to vote in favor of the motion even though he believes the Board may be setting a dangerous precedent by having full-time hearing officers working on a limited caseload
    (Director Koocher stated that in the future the Board should appoint hearing officers to work on any cases, not only pending cases and noted he is voting in favor of the motion in the interest of compromise so that Ms. Elwin can continue to work and to give the Board additional time to resolve the issues).

    MOTION CARRIES 8-0.

    Discussion:
    Directors and Staff discussed the Personnel Subcommittee’s deliberations of this morning on the appointment of E.Elwin; whether the Board should be scheduling interviews with prospective hearing officer candidates if there are no vacant hearing officer positions; the Board’s 10-21-03 motion stating the Board will “begin the hiring process to fill the current hearing officer openings with full-time hearing officers.”
    (Director Monfiletto stated he voted in favor of the motion based on certain information he believed to be true at the time and commented that he does not believe the Board has any hearing officer vacancies at this time); the Board’s 10-21-03 motion appointing R. Dunn and M. Stovall as Temporary Hearing Officers to alleviate the current backlog of cases (Director Monfiletto stated he voted in favor of the motion to move the process along and noted he made a comment at that time as to not supporting the motion but voting in favor of it to make sure that there were hearing officers in place to handle the formal hearing cases) and the Board’s 10-21-03 motion originally naming two people as temporary hearing officers which was amended by replacing one of the individuals with another staff member.

Directors caucused at 11:24 a.m.; returned to the meeting at 11:29 a.m.

    Discussion Continued:
    Directors and Staff then discussed the Board’s 10-21-03 motion and the subsequent confusion on whether the Board has any hearing officer vacancies at this time
    (Directors discussed assigning R. Dunn and M. Stovall to the two Portland hearing officer positions and Director Monfiletto stated that all hearing officers are temporary since their employment with the Board can be terminated at any time); the Labor member’s understanding as to the Board’s 10-21-03 motion resulting in the Board hiring two hearing officers without terms (Director Kirkpatrick pointed out that the 10-21-03 motion was a compound motion which added to the confusion and noted the Labor members supported hearing officers being in place until the Board takes final action on the positions); temporary hearing officers not being covered by Civil Service laws and regulations and the State’s one-year provisions not being applicable to R. Dunn and M. Stovall – the two temporary hearing officers at the Portland regional office; the Labor members supporting temporary hearing officers serving without terms; permanent hearing officers not serving at the pleasure of the Board and possibly having lifetime appointments regardless of their actions; some director’s concerns with M. Stovall and R. Dunn serving without terms because of the Board’s inability to interview them or receive an evaluation of their performance prior to assigning them as temporary hearing officers on 10-21-03 to handle the caseloads of H. Johnson & J. McCurry; the Board’s 10-21-03 motion not specifying that R. Dunn and M. Stovall would be assigned a temporary one-year term; the Management members supporting the 10-21-03 motion under the understanding that the two hearing officer positions would be advertised and filled at a later date; resolving the hearing officer issues regarding appointments and terms prior to filling the two hearing officer positions and notifying the prospective hearing officer candidates that the Board is postponing its hiring process for the two positions to give the Board an opportunity to discuss the issues at length; whether it is fair to the prospective candidates to perform the interviews and begin the hiring process if the Board is uncertain at this point as to how long it will maintain R.Dunn and M.Stovall as temporary hearing officers; the possibility of someone challenging the authority of the temporary hearing officers; Labor members agreeing to the 10-21-03 motion with the understanding they had at the time even though Management intended for the temporary positions to be a maximum of one year or its understanding that the backlog would have an effect on how long R. Dunn and M. Stovall would remain in the positions; whether the 10-21-03 motion implies that the Board agreed to hearing officers without terms when it voted in favor of the motion; a director’s remarks with respect to the Board’s 10-21-03 motion assigning R. Dunn and M. Stovall as temporary hearing officers resulting from a recommendation from the Executive Director; the Personnel Subcommittee’s deliberations of this morning on the two carryover bills from the First Regular Session of the 121st Legislature – L.D. 550 and L.D. 575 (Director Hiltz stated the Subcommittee discussed the two bills which will be addressed on 1-15-04 and 1-16-04. Directors also discussed the issue of frivolous workers’ compensation claims and a director’s comments as to the Legislature addressing frivolous claims filed by injured workers by allowing worker advocates to dismiss claims they believe are frivolous and there being no deterrent for frivolous Notice of Controversy filings, and remarks with respect that if a surcharge were in place that some cases may not go through the system which would be handled prior to being filed with the Workers’ Compensation Board. It was also noted that the bill could result in less advocates and a streamlining of the Board’s dispute resolution process. In response, Participant A.Muir stated that the Legislature did in fact consider frivolous filings and stated that is how the 25% interest surcharge was arrived at, in an effort to balance it out, and commented that the bill will not result in less NOC filings).

OLD BUSINESS

  1. Legislation: J.Rohde noted that in addition to L.D. 550 and L.D. 575 that L.D. 962 was also carried over from the First Regular Session; L.D. 962 consolidates the State’s advocacy departments into a single group. Mr. Rohde advised directors that the Joint Standing Committee on State and Local Government will be holding a work session on the bill on 1-7-04. Mr. Rohde then referred directors to his 1-5-04 memorandum which summarizes the two new bills that have been submitted for review during the Second Regular Session of the 121st Legislature – L.D. 1721 (An Act to Amend the Fees Paid to Attorneys for Lump-Sum Settlements in Workers’ Compensation Cases) and L.D. 1817 (An Act to Notify Maine Care of Workers’ Compensation Settlements). Mr. Rohde also advised directors that the Second Regular Session is expected to be brief. Directors were then asked how they would like to proceed on the two new bills with respect to testifying in favor of the bills, against the bills, or neither for nor against the bills.
  2. LD 1721
    An Act To Amend the Fees Paid to Attorneys for Lump-sum Settlements in Workers’ Compensation Cases.

    This bill limits an attorney’s fee in lump-sum settlement cases to 25%. Currently, fees are limited to 10% of the first $50,000; 9% of the first $10,000 over $50,000; 8% of the next $10,000 over $50,000; 7% of the next $10,000 over $50,000; 6% of the next $10,000 over $50,000; and, 5% of any amount over $90,000 of the settlement.

    LD 1817
    An Act To Notify Maine Care of Workers’ Compensation Settlements.

    This bill adds reimbursement of general assistance Medicaid expenditures to claims of compensation that are assignable or subject to attachment.

    Discussion:
    Directors discussed L.D. 1721
    (Mr. Rohde noted the bill limits an attorney’s fee in lump-sum settlement cases to 25% and advised directors that the fees are currently limited to 10% or less, depending on the amount of the settlement); the bill stating the attorney’s fee amount cannot exceed 25% of the settlement amount; ascertaining what the fee will be for a large settlement, such as $200,000; L.D. 1817 changing &106 of the Act to state that reimbursement of Medicaid expenditures are subject to attachment and would be treated in the same manner as child support obligations paid out of lump-sum settlements.

    James Mingo MOVED TO UNANIMOUSLY OPPOSE L.D. 1721; David Gauvin seconded.

    Discussion:
    Directors and Staff discussed the Sponsor(s) and Co-sponsor(s) of L.D. 1721, the bill not being scheduled for a hearing at this point and postponing further action on the bill until the Board has an opportunity to review the bill in its entirety; obtaining s information on the background of the bill’s creation and submission to the Legislature; the General Counsel providing the Board with figures on the attorney fee amounts for large settlements, such as a $200,000 settlement; whether a vote today would result in the Board not taking formal action on the bill at a later date; the possibility of a public hearing being scheduled on the bill prior to the next meeting and taking that into account if the Board postpones the item to the 1-20-04 meeting and Directors Mingo and Gauvin’s withdrawal of their motion and second to the motion to allow the Board ample time to consider the legislative proposal.

  3. WCB Draft Rule Chapter 5 (Revised Medical Fee Schedule): Acknowledging the Board’s 12-2-03 review of the public comments received on the revised Medical Fee Schedule and of the Board’s decision to table action on the matter to allow the Board sufficient time to review the material, Chairman Koocher circulated a proposed motion concerning the Board’s proposed Medical Fee Schedule and referred directors to J. Lambert who attended today’s meeting to discuss his concerns with the fee schedule.

    TABLED MOTION
    Anthony Monfiletto MOVED TO ADOPT THE PROPOSED CHANGES TO
    WCB DRAFT RULE CHAPTER 5 FOR 2003 AND TO INCLUDE THE CORRECTIONS STAFF RECOMMENDED TODAY WITH RESPECT TO THE TC MODIFIER FOR FACILITY BILLING AND THE 5% DISCOUNT FOR 30 DAYS FROM THE ORIGINAL BILLING DATE; Rodney Hiltz seconded.

    MOTION REMOVING THE MOTION FROM THE TABLE
    John Cooney MOVED TO REMOVE THE MOTION FROM THE TABLE ON WCB DRAFT RULE CHAPTER 5; James Mingo seconded. MOTION FAILS 4-4
    (Directors Monfiletto, Hiltz, Lemaire and Kirkpatrick opposed).

Directors caucused at 11:47 a.m.; returned to the meeting at 11:55 a.m.;

Discussion:
Directors, Staff and Participants discussed the proposed Medical Fee Schedule not being on today’s agenda and moving the item to the next agenda to allow all interested parties an opportunity to address the Board on the item; Participant J.Lambert’s interest in addressing the Board on the revised fee schedule; the tabling motion not having a date specific for when the Board would readdress the matter; the Chair having the ability to develop the Board’s agendas
(Director Hiltz suggested that the Board postpone further discussion on the fee schedule today since the above motion to remove the item from the table failed); today’s agenda having the fee schedule appearing on the Board’s 2-3-04 agenda and moving the item up to the next meeting (Directors asked staff and participants to notify interested parties of the Board’s plans to discuss the revised fee schedule at its meeting of 1-20-04).

  1. Dispute Resolution Statistics (Cases Assigned, Disposed of and Pending at Troubleshooting, Mediation and Formal Hearing): Directors received statistical charts on cases assigned, disposed of and pending at the three levels of dispute resolution and charts on the average months the cases were pending at those three levels.
  2. Discussion:
    Directors discussed the current situation at formal hearing being disruptive to the dispute resolution process; directors receiving statistical charts in their mailings for today’s meeting which were based on calculations prior to the end of the year and the new charts distributed today being more up to date; the increase in pending cases by approximately 338 at the formal hearing level because of the 200 fewer cases disposed of and the 51 more cases assigned to hearing officers last year which demonstrates the current impasse is having an impact on the formal hearing process
    (Mr. Dionne noted there were a greater number of cases pending at the end of 2003, as compared to the cases pending at the end of 2002, and referred directors to the statistics on the cases that have been pending for more than 18 months and commented that at the end of 2002 there were 7 cases and 32 such cases at the end of 2003); the statistics on the average months a case is pending at the formal hearing level (Staff noted that in 2002 was the lowest it has been and commented that the cases have increased to 8.9 months in 2003, which is expected to be approximately 9 months when the final figures are available from 2003 which is up from 7 months in 2002); the two temporary hearing officers having a positive impact on the cases at the Portland regional office; the Board’s Standard Operating Procedures requiring staff to provide the Board with an explanation of cases that are pending after so many months (Staff noted that the disruption in formal hearing officers has resulted in a backlog at the formal hearing level. Directors inquired as to whether any of the cases are bankruptcy or discrimination cases); Staff providing the Board with statistics by each regional office at a future meeting; the hearing officers that assisted the Board temporarily with the formal hearing cases at the Portland regional office; the cases assigned, disposed of and pending at the mediation level (Mr. Dionne reported that the number of cases pending rose from 603 at the end of 2002 to 854 at the end of 2003 and commented that those cases that were 60+ days at mediation also rose from 135 to 237); the statistics the Board received on the cases at the mediation level (Mr. Dionne reported that the average number of days for cases at mediation has increased from 54 to 60 and noted two mediators are currently serving as temporary hearing officers at the Portland regional office);the two temporary mediators that have been hired for the mediator positions formerly held by M. Stovall and R. Dunn (Staff noted R. Burns and J. Finn have begun working for the Board and remarked that R.Burns will not have a long learning curve because of her experience with MEMIC and commented that Ms. Burns and Mr. Finn shadowed other mediators and was provided with an orientation by B.Inman on the positions), and the statiscal data on the cases pending, assigned and disposed of at troubleshooting (Mr. Dionne advised directors that the caseload has gone down from 967 to 838 and commented that the number of cases pending for more than 42 days is down from 248 to 152; however, the average number of days that a case was at troubleshooting went up slightly from 23 to 29 days).

ADJOURNMENT

David Gauvin MOVED TO ADJOURN; Anthony Monfiletto seconded. MOTION CARRIES 8-0.

The meeting formally adjourned at 12:15 p.m.


Return to 2004 Board Minutes