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WORKERS' COMPENSATION BOARD
Board of Directors’ Meeting
April 20, 2004

A meeting of the Workers’ Compensation Board of Directors was held on Tuesday, April 20, 2004 at the Board's Central Office in Augusta, Maine (AMHI Complex, Deering Building, Rm. 170). Chairman Dionne called the meeting to order at 9:09 a.m.

ROLL CALL

PRESENT: Paul Dionne, Gary Koocher, John Cooney, Anthony Monfiletto, Rodney Hiltz, and Joan Kirkpatrick. ABSENT: James Mingo

MINUTES

John Cooney MOVED TO APPROVE THE MINUTES OF JANUARY 20, 2004; Gary Koocher seconded. MOTION CARRIES 6-0.

EXECUTIVE DIRECTOR REPORT

  1. P.L. 2003, Ch. 608 (L.D. 1909 -- An Act to Promote Decision Making Within the Workers’ Compensation Board): After acknowledging enactment of L.D. 1909 into law on 4-8-04, the bill introduced by Governor Baldacci during the Second Regular Session of the 121st Legislature, P.Dionne announced that Chapter 608 changes the composition of the Board of Directorsof the Workers’ Compensation Board to three Labor members (Directors A.Monfiletto, R.Hiltz, and J.Kirkpatrick) and three Management members (Directors G.Koocher, J.Mingo and J.Cooney) and requires that the Executive Director serve as a Board member and Board Chair.

  2. Retiring Employee (Deputy Director of Business Services: P.Dionne informed the Board that Deputy Director of Business Services J.Jolicoeur will be retiring on 4-30-04, after nearly 34 years of employment with the State of Maine. Mr. Dionne noted Mr. Jolicoeur has been with this agency for approximately 27 years and stated he will be sadly missed.Directors were also advised that the Deputy Director of Business Services position serves at the pleasure of the Board and of the Budget Subcommittee’s discussions this morning with respect to opening the position up for open recruitment to receive resumes from the most-qualified candidates.

  3. Plaque Presentations: P.Dionne informed the Board that plaques have been ordered to recognize Directors Gauvin and Lemaire for their years of dedication and service to the Workers’ Compensation Board and for the 2003 Chair and noted he would like to present the awards to Directors Koocher, Lemaire and Gauvin at the Board’s next meeting and offered to send Directors Lemaire and Gauvin an invitation to attend the Board’s 5-4-04 meeting to receive the awards.

  4. Regulatory and Board By-Law Changes Due to P.L. 2003, Ch. 608: P.Dionne reported that Board staff will be preparing a list of proposed amendments to Board’s rules and regulations and by-laws for the Board’s consideration at the next meeting. Staff noted the changes are the result of the Legislature’s recent passage of L.D. 1909.

    Discussion:
    Directors and Staff discussed the new law resulting in the Board’s Executive Director serving on the Board of Directors and the Governor’s Cabinet (P.Dionne extended an invitation for the Board members to contact him at any time to discuss their thoughts, concerns, and/or suggestions that they would like him to bring to the attention of Governor Baldacci and his Cabinet).

GENERAL COUNSEL REPORT

  1. Pending Litigation (Lindsey Knapp v. Workers’ Compensation Board): After advising directors of a pending appeal before the Cumberland County Superior Court in which Ms. Knapp appealed an Abuse Investigation Unit decree involving a multi-part complaint in which she lost on all accounts, J.Rohde informed the Board that staff attended an oral argument in the Knapp case on 3-23-04 and stated he expects to receive a decision from the Court within the next month, or so.

  2. WC Specialist Vacancy: J.Rohde advised directors that T.Collier and B.Harris conducted interviews on 3-29-04 and 4-1-04 for a replacement for Former Workers’ Compensation Specialist A.Fisher, stated the position will be offered to the candidate best suited for the job in the very near future and remarked that the Unit will be fully staffed at that point.

  3. Three Pending Requests for Extension of Benefits Due to Extreme Financial Hardship, Pursuant to Section 213(1): Following up on his recent update on the pending hardship cases the Board has received pursuant to §213(1) – Frederick Starbird v. City of Portland, Ly Nang Dang v. Barber Foods, Shirley Carver v. Catholic Charities of Maine and Randolph Libby v. W.L. Sturgeon, J.Rohde stated Chairman Dionne has recommended scheduling the four cases for Board deliberations on 5-18-04, which will be the only item on the agenda for that day and noted the hearings will begin at 8:00 a.m. so that the Board can deal with all four cases on 5-18-04.

  4. Legal Proceedings Involving a Former Employee: Following up on staff’s recent reports and circulation of an article that appeared in the Kennebec Journal on 1-30-04 regarding a Former Advocate, J.Rohde reported that Former Advocate R.Bishop has withdrawn his grievance against the Board regarding his termination and stated the arbitrator has been advised to close the case.

  5. Law Court Decisions (Richard Farris v. Georgia Pacific Corporation, et al, Richard Archer v. MDS Building, Inc., et al, Joseph Lydon v. Sprinkler Services, et al, Vickie Johnson v. S.D. Warren Co., et al and Maryann Moore v. City of Portland): Referring directors to the recent Law Court decisions he has forwarded to the Board for their review, J.Rohde briefly summarized the arguments in each case to assist the Board in having a better understanding of the issue(s) before the Court.

  6. Discussion:
    Directors and Staff discussed the Law Court decision in the Farris case (Staff advised directors that the question before the Court was who has the burden of proof when an insurance company is attempting to discontinue payments because an employee has reached the statutory maximum when payments are made pursuant to an award of compensation or compensation payment scheme. Mr. Rohde explained that the Court’s answer was that the employee has to raise the issue and provide some evidence that his or her permanent impairment level is above the threshold; it then becomes the employer’s burden of proof to prove that the permanent impairment is less than the threshold in order to suspend benefits. Mr. Rohde further explained that the Court did not address a situation in which payments are being made voluntarily and can be suspended under a 21-Day Certificate, and remarked that generally a Petitioner has the burden of proof on all relevant issues and that an employee will most likely file a petition if there is a 21-Day Certificate of Discontinuance filed by the employer or insurer. Staff also noted that it is not clear what the Court will ultimately say if such a case arises because it does state there are cases where the petitioning party will not have the burden of proof if it is impractical or unreasonable. Mr. Rohde noted the decision in the Farris case is fairly narrow and only deals with a situation where you have a compensation payment scheme or an award of compensation) the Court's 2-2-04 ruling in the Archer case (Staff stated the employee lost his left thumb and index finger in a work-related accident and after a period of recuperation it was decided, between the employee and his doctor, that he would place his large toe on his hand to act as a surrogate thumb. Staff noted the insurer paid specific loss benefits for the finger and thumb, but denied responsibility for the large toe. Staff informed directors that the Court basically focused on the fact that the hearing officer had, in part of the decision, said the replantation of the large toe was elective surgery and that there would be no specific loss benefits. The Court, however, simply said it was a reasonable and proper medical treatment that he underwent because the amputation was directly related and that the employee was entitled to specific loss benefits for the loss of the toe as well as the thumb and first finger);the Law Court’s 2-12-04 decision in Lydon case (Staff reported that the Court concluded that the physician was ineligible to serve as an independent medical examiner and vacated the Board’s decision); the Court’s 3-2-04 ruling in the Johnson case (Staff reported that the employee received unemployment benefits for a 26-week period and after that received Federal benefits pursuant to the Trade Readjustment Allowance Act of 1974. Staff explained that the insurer argued that it was entitled to an offset for those benefits because they were unemployment benefits; the hearing officer agreed and the Law Court ultimately vacated the decision on the grounds that the setoff for unemployment benefits is governed strictly by the statutory language and pointed out that the trade readjustment benefits are to help an individual pursue a job. Staff reported that the benefits were administered under Chapter 26 of Title 26 where as the unemployment benefits mentioned in the statute are governed by Chapter 13 of Title 26 so they do not meet the strict definition of unemployment benefits that can be offset and therefore the insurer is not entitled to an offset for those benefits) and the Court’s 4-8-04 decision in the Moore case (Staff noted the Moore case involves whether or not the employee is or is not entitled to total incapacity benefits and noted the Court found that the decision of the hearing officer did not squarely address the issue of whether the employee was unable to perform a job that is available in the ordinary workforce and remanded the matter back to the Board for further proceedings).

Directors caucused briefly at 9:21 a.m.; returned at 9:42 a.m.

SUBCOMMITTEE / COMMITTEE REPORTS

  1. Budget Subcommittee: Directors were advised that Budget Subcommittee Members J.Cooney and J.Kirkpatrick met with the Staff members P.Dionne and J.Rohde this morning to review documents on the assessment, which show a slight increase for insureds over last year and the Board’s accumulation of only $167,000 over the reserve account allotment. Chairman Dionne stated the Budget Subcommittee unanimously recommends setting the FY2005 assessment rate at 2.02% and entertained the following motion from Director Kirkpatrick on the matter.

    Joan Kirkpatrick MOVED TO ACCEPT THE BUDGET SUBCOMMITTEE’S RECOMMENDATION TO REDUCE THE ASSESSMENT FROM $8,565,000 TO $8,400,000 FOR FY2005 AND REQUIRE STAFF TO USE AN ASSESSMENT RATE FOR INSUREDS OF 2.02% ON AN FY2005 ESTIMATED INSURED MARKET OF $255,000,000 and to raise $3,252,274, FROM SELF-INSUREDS; John Cooney seconded.

    Discussion:
    Directors and Staff discussed the Board reviewing the membership assignments for its standing subcommittees due to the passage of P.L. 1909 (In response to Director Monfiletto’s inquiry as to whether the Board can assign two of its Management and Labor representatives to its subcommittees to avoid the possibility of some subcommittee meetings being cancelled when one member cannot attend a meeting, Staff stated the Board should only assign one member from each Caucus to serve on a subcommittee since more than one member would allow the Board to have a quorum, which would require the Board to provide public notice of subcommittee meetings since the subcommittee would have the ability to take formal action on matters); whether the Board can continue holding retreats (Staff stated that if a quorum is present at a retreat then it must make the public aware of the session) and the new subcommittee assignments for the Personnel and Budget Subcommittee (The Labor Caucus announced its plans to have Director Kirkpatrick serve on the Budget Subcommittee and Director Hiltz serve on the Personnel Subcommittee and the Management members reported that Director Koocher will be serving on the Personnel Subcommittee and that Director Cooney will continue serving on the Budget Subcommittee).

  2. Personnel Subcommittee: Chairman Dionne announced that the next Personnel Subcommittee meeting will take place at 8:00 a.m., prior to the next board meeting, on May 4, 2004.

  3. EDI Committee Update: In Response to Director Kirkpatrick’s inquiry as to IAIABC’s plans to introduce its Release III electronic data interchange program to the public, Staff informed the Board that California and Michigan have decided not to participate in IAIABC’s beta testing on the new EDI program and noted the Association extended an invitation to the Board to perform the beta tests, but that the Board declined the offer due to limited funding IAIABC will be providing for the testing. Staff noted the Association has also asked Technology Officer P.Fortier to attend its upcoming “All Committee” Conference in order to make a presentation on EDI and to discuss the Association adapting its Release I flat form program to the Board’s filing requirements.

    Discussion:
    Directors and Staff discussed IAIABC’s initial plans with respect to introducing its Release III EDI program in October of 2003 and the delay resulting from the difficulty the Association has had in finding a state to perform a beta test on the new program; the Board looking into using the Association’s Release I program several years ago and concluding at that time that it was unable to do so because it did not require specific information the Board requires, such as the date of when an employer is notified of an injury (Staff noted the date is used to set future timeframes on cases); IAIABC proposing to remove certain elements from its Release III program and adding them to its Release I program to update the program for system users and the Board approving the out-of-state travel costs for Executive Committee Member P.Dionne and Technology Officer P.Fortier to attend the Association’s upcoming conference.

    John Cooney MOVED TO APPROVE THE OUT-OF-STATE TRAVEL COSTS ASSOCIATED WITH SENDING P.DIONNE AND P.FORTIER TO THE IAIABC “ALL COMMITTEE” CONFERENCE; Anthony Monfiletto seconded. MOTION CARRIES 6-0.

    Discussion:
    Directors and Staff discussed the hiring process the Board may want to use when filling the Deputy Director of Business Services position (Directors conversed briefly with respect to the Budget Subcommittee being advised that no staff members have expressed an interest in the position, opening the position up for recruitment to allow all qualified candidates to apply; advertising the position as soon as possible to begin receiving resumes from prospective candidates and utilizing the web-based “help wanted” marketing services such as Jobs in Maine.com to obtain applications from interested individuals, which may be less expensive and result in a larger response) scheduling a Personnel Subcommittee meeting prior to the next meeting and holding the board meeting at 9:30 a.m. that morning (Directors Monfiletto and Hiltz recommended scheduling the regular meeting for 9:30 a.m. so that the Caucuses can meet briefly after the subcommittee meeting to receive an update on the deliberations. Directors agreed to meet at that time and asked that the meeting start promptly at 9:30 a.m. so that directors can return to their jobs) and limiting the number of items on Subcommittee agendas to ensure that the deliberations conclude within an hour.

OLD BUSINESS

  1. Medical Fee Schedule (Chapter 5 Consensus-Based Rulemaking Committee): Directors were advised that staff will prepare a recommendation for their review and consideration on as to the interested parties the Board may want to ask to participate on the Consensus-Based Rulemaking Committee being formed to work on the Board’s Medical Fee Schedule.

  2. Legislation Addressed During the Second Regular Session of the 121st Legislature: Mr. Rohde informed the Board that the Joint Standing Committee on Labor has taken action on all workers’ compensation bills that were before them and advised directors that L.D.’s 550, 575, 962, 1721and 1817 are dead, that L.D. 1688 has passed both Houses and is on the Special Appropriations Table waiting final approval which requires that interpreters be made available for hard-of-hearing employees and deaf individuals (already being done by the Board), and that L.D. 1909 has been enacted into law as P.L. 2003, Ch. 608. Directors were also advised that the Board will continue working with MaineCare on a process that allows them to recoup monies paid on a workers’ compensation case even though L.D. 1817 is dead, and that L.D. 957 is on the Special Appropriations Table in the Senate. Mr. Rohde noted that L.D. 967 essentially reasserts the Legislature’s interest in making sure that the public access laws are being complied with and requires that the provisions related to confidentiality and statutes will be reviewed on a periodic basis, every ten years, to discuss whether the exceptions to the law need to be readdressed. Staff explained that the Board will not be scheduled for a review until 2010, or later.

SUMMARY OF LEGISLATIVE PROPOSALS

L.D. 550
An Act regarding the Employment of Workers’ Compensation Board Hearing Officers and Mediators

Summary:
The bill proposed to transfer of authority to hire hearing officers and mediators to the Executive Director and make the individuals subject to Civil Service Law.

L.D. 575
An Act To Encourage Workers’ Compensation Dispute Resolutions

Summary:
The bill proposed to authorize a surcharge on an employer of $500 for mediation, or $1,500 for formal hearing if an employee obtains or retains more benefits than were offered by the employer prior to mediation or prior to formal hearing and states that all surcharges will be deposited in a special account and dedicated for use by the advocate program.

L.D. 962
An Act to Consolidate the Advocacies of the Various State Agencies into an Executive Department and Establish the Office of Inspector General

Summary:
The bill proposed to consolidate all advocacy services (including the Board’s Worker Advocate Program) into a single State agency.

L.D. 1688
An Act to Clarify the Law Regarding Interpreting Services for People Who Are Deaf or Hard-of-Hearing

Summary:
The bill gives deaf and hard-of-hearing people the ability to obtain an interpreter and/or card services to assist them.

LD 1721
An Act To Amend the Fees Paid to Attorneys for Lump-sum Settlements in Workers’ Compensation Cases

Summary:
This bill proposed to limit 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

Summary:
This bill proposed adding reimbursement of general assistance Medicaid expenditures to claims of compensation that are assignable or subject to attachment.

L.D. 1909
An Act To Promote Decision Making Within the Workers’ Compensation Board

Summary:
The bill changes the composition of the Workers’ Compensation Board from an eight-member board to a seven-member board (three Management representatives, three Labor representatives and the Executive Director who will also serve as the Board’s Chair).

  1. Hearing Officer Terms: Chairman Dionne inquired of directors how they would like to proceed with respect to continuing their discussion on terms, if any, for hearing officers.

    Discussion:
    Directors and Staff discussed an e-mail Director Monfiletto sent to the Board members after attending the Labor Committee’s hearings and work sessions on L.D. 1909 at which time the issue of a term for the Executive Director was raised (Director Monfiletto noted the Labor Committee felt the Executive Director did not need a term because of the implied accountability that goes along with his position and wondered if the same situation applies to the Board’s hearing officers. Director Monfiletto further explained that he received a convincing response from Director Cooney who pointed out that the Committee most likely would have included language in the bill doing away with the hearing officer’s terms if they believed it was a similar situation); and the difference between the appointment process with respect to the Board appointing the hearing officers and the Governor appointing the Executive Director.

    Anthony Monfiletto MOVED THAT ALL NEW HEARING OFFICER SERVE A THREE-YEAR TERM AND ANY REAPPOINTMENTS OF THOSE HEARING OFFICERS, OR REAPPOINTMENT OF CURRENT HEARING OFFICERS SERVE A SEVEN-YEAR TERM; Rodney Hiltz seconded.

    Discussion:
    Directors and Staff discussed Chairman Dionne adding the Hearing Officer item to today’s agenda to discuss the terms, if any, for hearing officers; the Management caucus supporting terms for the hearing officers and the Labor Caucus supporting no terms but agreeing to change the process to move the matter along; the Executive Director recommending the hearing officer’s terms coincide with judicial terms which are for seven years
    (Chairman Dionne recommended exercising caution in regard to new hires and noted the provision does in fact provide a three-year probationary period for new hires); the Board’s earlier deliberations on assigning a seven-year term for the hearing officers reappointed by the Board which is similar to the appointment of judges and the Board monitoring new hires to make sure they are doing their jobs properly; those hearing officers whose terms end on 12-31-04 (Director Koocher noted that 50% of the Board’s hearing officers renew at the same time under the current schedule for the nine hearing officers employed by the Board and recommended staggering the terms of hearing officers so that every year the Board is only acting on one or two hearing officer appointments which may also prevent problems with a controversial reappointment); amending Director Monfiletto’s proposed motion to include language that states all hearing officer appointments will be dealt with on an individual basis and not grouped together in one motion; some director’s continued support for no terms for hearing officers; the four hearing officer’s whose terms expire on 12-31-04 (Director Koocher pointed out that three out of the four have been with the Board since 1994 and stated that one of them has only been a hearing officer for less than three years and suggested having a three-year first appointment, a four-year second appointment and gradually building up to a longer period of time for reappointments, as opposed to going from three years to seven years) and some of the benefits with staggered terms.

    Directors caucused at 10:09 a.m.; returned at 10:45 a.m.

    Discussion Continued on Hearing Officer Terms:
    Directors and Staff discussed the motion changing the present three-year terms to three-year terms for initial appointees and seven-year terms for reappointments and the Board making a commitment at this time to conduct regular annual performance evaluations of hearing officers and to develop an evaluation process that involves a peer-review process
    (Directors expressed support for discussing the matter at length to determine the criteria that will be used for the annual reviews).

    MOTION CARRIES 6-0.

    Gary Koocher MOVED TO APPOINT HEARING OFFICER ELIZABETH ELWIN TO A TERM OF SEVEN YEARS BEGINNING JANUARY 1, 2004 AND ENDING NO LATER THAN DECEMBER 31, 2010; Rodney Hiltz seconded. MOTION CARRIES 6-0.

    Discussion Continued:
    Directors and Staff discussed the two hearing officers assigned to temporarily handle the hearing officer duties of Former Hearing Officers H.Johnson and J.McCurry, who were appointed by the Board as temporary hearing officers on 10-21-03>; the temporary assignment possibly having an impact on their decision-making abilities since an issue has been raised as to the possibility of someone challenging their rulings at some point if they are not considered permanent hearing officers.

    Anthony Monfiletto MOVED TO APPOINT MICHAEL STOVALL AND RICHARD DUNN TO THREE-YEAR TERMS RETROACTIVE TO JANUARY 1, 2004 AND ENDING NO LATER THAN DECEMBER 31, 2006; Rodney Hiltz seconded.

    Discussion Continued:
    Directors and Staff discussed R.Dunn and M.Stovall not being hired through a formal interview process since the Board simply assigned the positions to them on a temporary basis to work on the backlog of cases; the Board receiving 100 or more applications from individuals interested in the two hearing officer positions at the Portland office, which the Personnel Subcommittee reviewed and narrowed down to 15 or 20 that the Board may want to interview; hiring the best people for the job – one of the highest paid positions within State Government; creating a fair process for the two positions for those individuals who applied for a hearing officer position since the position was opened to the public; the expertise of M.Stovall and R.Dunn who have been performing the duties of a hearing officer since October of last year (Director Monfiletto stated the two individuals are good candidates for the position and stated it is unfair to conduct interviews if the Board believes they are the best people for the job); the temporary hearing officers not being on today’s agenda and tabling the above motion to the 5-4-04 matter to allow directors ample opportunity to consider the proposal and whether the temporary hearing officers would be considered new appointments or reappointments.

    Directors caucused at 10:53 a.m.; returned at 10:55 a.m.

    Joan Kirkpatrick MOVED TO TABLE THE PROCEEDING MOTION TO THE NEXT MEETING; Rodney Hiltz seconded.TABLING MOTION CARRIES 6-0.

    Discussion Continued:
    Directors and Staff discussed the two individual’s restricted duties with respect to only handling the backlog of cases before them having very little impact on the formal hearing cases at the Portland office
    (Staff noted there are only two or three cases that have been brought to their attention and stated that it should not create a problem if the restrictions remain in place for another month or so).

  2. Actuarial Study: After acknowledging the Board’s award of the Section 213 contract to EPIC who recently merged with Milliman, USA and agreed to subcontract work under the contract to Milliman, P. Dionne suggested inviting Mr. Mezner to attend an upcoming board meeting to discuss the merger and how best to proceed with the contract the Board awarded to EPIC Actuaries.

    Discussion:
    Directors and Staff discussed whether EPIC Actuaries breached its contract with the Board and whether the Board will incur any expenses for the work he has done under the contract (Staff advised directors and participants that the Board advised Mr. Mezner to cease any further actions on the study pending Board deliberations and action on the recent changes) the Board’s contract with EPIC Actuaries stating that the actuary cannot subcontract the work assigned to them without the approval of the Board of that subcontract which the Board has not done; extending an invitation to Mr. Mezner to attend an upcoming board meeting to discuss the contract (at his expense); whether EPIC Actuaries has already disqualified themselves under the contract because of their decision to subcontract the work with Milliman (Director Monfiletto suggested asking for a letter of explanation from Mr. Mezner if he is unable to meet with the Board in person); determining what expenses, if any, the Board is responsible for towards the work he has already done under the contract (Staff stated the Board is not responsible for the work he has done under the subcontract); the Board awarding the contract to EPIC Actuaries not the firm that purchased the entity; State contracts stating work cannot be subcontracted to an entity without the prior approval of the awarding agency and that no work is reimbursable under the contract without prior approval; the Board raising the issue of the work done to date under the contract being done without the Board being aware of the company being sold to another firm especially if EPIC Actuaries is unable to deliver the product agreed to under the contract and the Board contacting Mr. Mezner to see if he would like to meet with the Board to discuss the matter prior to the Board making a decision to void the contract and/or deciding how best to proceed.

  3. Chapter 3:   Following up on the Board’s 10-7-03 approval of the Chapter 425 Committee’s proposed rules regarding electronic filings, which the Board proposed at a public hearing in Augusta on 1-8-04, T.Collier referred directors to WCB Draft Rule Chapter 3 and introduced the Chapter 425 Committee members in attendance that assisted the Board in drafting the rule. Mr. Collier advised directors that they have until 5-19-04 to take formal action on the rule before them and noted staff is recommending a couple of amendments to the rule as a result of the public comments received on the proposed rule changes.
  4. Discussion:
    Directors and Staff discussed the Chapter 425 Commission consisting of Susan Avery (representing self-insured employers), Robert Crosby (representing insurance carriers), Bill Gourde (on behalf of third-party administrators), Directors Kirkpatrick and Koocher on behalf of the Board and Staff Members P. Fortier, S. Minkowsky and himself; the amended rule containing a new section-- Section 4(1) which defines electronic data interchange as it relates to the computer-to-computer exchange of business transactions in the standardized electronic and requires electronically-filed First Report forms by 1-1-05; notice of controversy forms by 7-1-05, and memorandum of payment forms by 1-1-06; the proposed rule also containing a waiver provision in paragraph 5 which gives the Board, at its discretion by a majority vote, the ability to waive the requirement for anyone who makes application to the Board and establishes that compliance would cause undue hardship (Staff noted the language was included in the rule because the Committee took into account some problems that may arise with the IAIABC Release III electronic data interchange program) the five individuals who submitted comments regarding IAIABC’s Release III EDI program, which is referred to in the proposed rule (Staff noted they are recommending that the rule be amended to refer to an enhanced IAIABC Release I program); voicing a motion approving the rule with the amendments staff is recommending today; the Board having until 5-19-04 to act on Chapter 3; the five commentators who felt that the 1-1-05 deadline may be too soon for electronically filed First Reports and recommendation with respect to extending the deadline; the four commentators who stated the Executive Director should be authorized to act on waivers; the five commentators who stated the rule should be specific that an electronic filing meets the statutory filing requirements and is just as valid as a paper filing (Staff recommended amending the language); the three commentators who stated the Board and its staff should seek advice from IAIABC members who have some experience with mandated electronic filing; the comment received from the individual who suggested that the Board adopt a moratorium on changes to WCB forms for five years after implementing a mandatory electronic filing process in order to permit employers to recover from the economic impact and avoid additional programming costs; one commentator’s remarks with respect to the rule specifying whether the paper notice of controversy must also be filed and if so, when and who has the responsibility for that and also suggested that the Board should specify when an electronic filed document will be considered received for purposes of dispute resolution; one commentator suggesting that an alternative transmission protocols be considered in addition to FTD only and that industry-standardized code sets be used and that the process be consistent with IAIABC’s process; one commentator asking for statutory language that will discontinue the insurer’s obligation to provide a paper copy of any electronically-filed documents to any party and also that the Board use the recorded date that the electronic report is provided to the Board’s electronic mailbox as the received date and that the Board be liable for any vendor fees if one is used; whether the rule, as written, creates a problem with respect to requiring a paper copy and an electronically-filed form; the group’s intent being what the Board’s file consists of as it relates to dispute resolution (Staff noted this enables a hearing officer to take administrative notice of all filings and include all electronic files but that it would not go to the other issue of whether the paper copy needs to be supplied to the parties as part of the filing process); when a file is put together here at the Board before it is forwarded to someone within the dispute resolution process a copy of the electronically-received First Report is placed in the file and if for whatever reason it gets lost in the forwarding process that the form is in our system and considered part of the file even if it is not physically in the paper file upon receipt; the possibility existing for paper to be lost during the shuffling of cases from one staff member to another within the dispute resolution process; changing the language to state “The Board file shall include all electronic submissions (Director Monfiletto stated that “regardless of whether a paper copy is in the file” is irrelevant and commented that the language needs to be clarified unless it requires both, or one without the other); employers and insurers not being required to send a paper copy to the Board if they have filed a form electronically; the Board normally only receiving an electronically-filed First Report (and not both—an electronically filed copy and a paper copy); Board staff creating a workers’ compensation file upon receipt of First Report and printing electronic reports to go into the file if one is in fact filed on a case; Chapter 3 already having a section that states that “paper copies of forms that are filed by fax or other electronic transfer will not be accepted.”

    Anthony Monfiletto MOVED TO ADOPT THE PROPOSED RULE ON ELECTRONIC FILINGS FOR CHAPTER 3 WITH THE FOLLOWING CHANGES: Chapter 3, Section 4(1) – second sentence to read “acceptable formats are: The State of Maine proprietary EDI format and the IAIABC Enhanced Release I Flat File Format.” And (2) Chapter 3, Section 4(6) – new paragraph reading “The Board file shall include all electronic submissions regardless of whether a paper copy is physically in the file.”; John Cooney seconded. MOTION CARRIES 6-0.

CHAPTER 3         FORM FILINGS

§1. The definition of a day for purposes of filing a First Report of Occupational Injury or Illness (WCB-1) under §303 is the number of hours or wages in an employee's regular workday. If an employee does not have a regular workday, then average hours or wages should be used. The following non-exhaustive list of examples are for illustrative purposes only:
  Example 1: Employee usually works three 12-hour shifts. Once employee misses a total of 12 scheduled hours, a day has been missed.
  Example 2: Employee works erratic hours.
2(A) An employee has missed a day when a normally scheduled workday is missed; regardless of the number of hours missed;
2(B) When an employee misses part of a normally scheduled workday, a day is missed when an average day is missed. (Average day = Hours worked in previous month/Number of days worked during the month.)
  Example 3: Employee works piecework and loses the equivalent of the pre-injury daily wage.  (Daily wage = Money earned in previous month/Number of days worked during the month.)
  Example 4:  Employee works more than one job and employer is aware that employee has lost a day (see definitions above) of work at any job; the employer at the place of injury must file a First Report.
§ 2. 1.          Except as specifically provided in 39-A M.R.S.A. § 101 et seq. or in these rules, all forms and correspondence, including, but not limited to petitions, shall be filed in the Central Office of the Workers’ Compensation Board.
  2.          A.         Except as specifically provided in 39-A M.R.S.A. § 101 et seq. or in these rules, forms and correspondence required to be filed in the Central Office of the Workers’ Compensation Board are filed when the Board receives the form by mail, in-hand delivery, fax, or other form of electronic transfer.
              B.         Paper copies of forms that are filed by fax or other form of electronic transfer will not be accepted.
§ 3. 1.          Except as specifically provided in 39-A M.R.S.A. § 101 et seq. or in these rules, formal hearing correspondence on a proceeding in progress before a Hearing Officer, including, but not limited to, motions to continue, motions for findings of fact and conclusions of law, applications for additional discovery, stipulations, and position papers shall be filed in the appropriate regional office to which the case has been assigned.
  2.          Formal hearing correspondence on a proceeding in progress before a Hearing Officer shall be filed by mail, in-hand delivery, or fax.
§ 4. Electronic filing
  1.                   “Electronic data interchange” or “EDI” means the computer-to-computer exchange of business transactions in a standardized electronic format.  Acceptable formats are (1) the State of Maine Proprietary EDI Format, and (2) the International Association of Industrial Accident Boards and Commissions (IAIABC) Enhanced Release 03 01 Flat-File Format.
  2.                   All First Reports of Injury (WCB-1) involving a day or more of lost time shall be filed with the Board by EDI not later than January 1, 2005
  3.                   All Notices of Controversy (WCB-9) shall be filed with the Board by EDI not later than July 1, 2005.
  4.                   All Memoranda of Payment (WCB-3) shall be filed with the Board by EDI not later than January 1, 2006.
  5.                   The Board, at its discretion by majority vote of its membership, may grant an employer, insurer or third-party administrator a waiver of the filing requirements of this section if the employer, insurer or third-party administrator establishes to the satisfaction of the Board that compliance with these requirements would cause undue hardship.  For purposes of this section, undue hardship means significant difficulty or expense.  The selection of EDI format is one factor that the Board may consider in deciding upon a request for a waiver.  Requests for waivers should be submitted in writing and addressed to the Chair of the Workers’ Compensation Board, 27 State House Station, Augusta, Maine 04333-0027
  6.         The Board file shall include all electronic submissions, regardless of whether a paper copy is physically in the file.

NEW BUSINESS

  1. Draft Quarterly Compliance Report / Abuse Investigation Unit Staffing: Directors received and approved Staff’s draft quarterly compliance reports for the third and fourth quarter of 2003.
  2. John Cooney MOVED TO ACCEPT THE DRAFT QUARTERLY COMPLIANCE REPORTS FOR BOTH THE THIRD AND FOURTH QUARTER OF 2003; Anthony Monfiletto seconded.MOTION CARRIES 6-0.

  3. Board By-Laws: Director Monfiletto asked directors to review the by-laws to see if they have any suggested amendments prior to the next meeting so that Staff can incorporate the changes in the document they provide to the Board for the meeting of 5-4-04.

ADJOURNMENT

Gary Koocher MOVED TO ADJOURN TODAY’S MEETING; Anthony Monfiletto seconded. MOTION CARRIES 6-0.

The meeting formally adjourned at 11:19 a.m.


Return to 2004 Board Minutes