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WORKERS' COMPENSATION BOARD
Board of Directors’ Meeting
June 1, 2004

A meeting of the Workers’ Compensation Board of Directors was held on Tuesday, June 1, 2004 at the Board's Central Office in Augusta, Maine (AMHI Complex, Deering Building, Rm. 170). Chairman Dionne called the meeting to order at 9:46 a.m.

ROLL CALL

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

MINUTES

Anthony Monfiletto MOVED TO APPROVE THE MINUTES OF MAY 4, 2004, AS WRITTEN; James Mingo seconded.

Discussion / Amendment:
Directors asked staff to correct the spelling of the word “deaf” in item #4 on page 3 and approved the minutes, as amended.

MOTION CARRIES 7-0.

SUBCOMMITTEE REPORTS

  1. Budget Subcommittee Update: Subcommittee Member J.Cooney advised directors that the Budget Subcommittee met this morning at which time the group received a status report on the operational results for FY04 and discussed when to conduct the interviews for the Deputy Director of Business Services position. Director Cooney noted the group also discussed a 2% increase for confidential employees.

Discussion:
Directors and Staff discussed the Budget Subcommittee’s conducting the DDBS interviews
in June (In response to an inquiry as to why the Personnel Subcommittee will not be interviewing the prospective candidates for the deputy director position, Chairman Dionne stated the Budget Subcommittee discussed holding the interviews since the individual will be dealing with budgetary matters and reporting to them periodically).

EXECUTIVE DIRECTOR REPORT

  1. Hearing Officer Vacancies: Chairman Dionne announced that the Personnel Subcommittee will be interviewing prospective candidates for the two hearing officer positions at the Portland Regional Office on 6-22-04, 6-23-04.

     

  2. Pending Request for Extension of Benefits Due to Extreme Financial Hardship: Following up on the Board’s 5-18-04 deliberations on the pending Request for Extension of Benefits Due to Extreme Financial Hardship in the Frederick Starbird case, Chairman Dionne announced the Board’s plans to continue its deliberations on the Starbird case on 7-20-04 and stated the proceedings will be held at 1:00 p.m. or sooner –depending on what time the Board concludes its business meeting that day. Staff advised directors that only those members who sat in on the original proceedings on 5-18-04 can participate in future proceedings in the case and circulated copies of documents the Board requested in the matter.

     

  3. Board Meeting Scheduled for July 6: After advising directors of an inquiry he received as to whether the Board will be holding a meeting on 7-6-04, following the 4th of July holiday, and of a director’s inability to attend the first meeting in July because of the vacation plans, Chairman Dionne polled directors to see how many of them plan on attending the first meeting in July, which is scheduled for 7-6-04. In response, all directors except for one stated they will be attending the business meeting.

     

  4. Board Meeting and Public Forum in Caribou on June 15: Chairman Dionne asked directors what time they would like to hold the business meeting that will take place prior to the public forum on 6-15-04, which will be held at 7:00 p.m. at the Board’s Caribou regional office. Chairman Dionne informed the Board that those directors that cannot attend the session can participate telephonically.

     

  5. Cases Pending Before the Abuse Investigation Unit: Assistant General Counsel T.Collier reported that a list as been compiled of the entities that have outstanding penalties and were advised that they will be contacting them to inquire as to why the penalties have not been paid. Staff noted the Board has the ability to seek enforcement of any penalties not paid and of the requirement that the entity reimburse the Board for its legal fees in pursuing the matter. Staff noted the entities may also be in violation of Sec. 362 if the penalties are not paid.

     

  6. Formal Hearing Cases: P.Dionne announced a slight decline in the formal hearing cases during the last quarter, noting the caseload when down from 1,753 cases to 1,744 cases and remarked that the Board was able to maintain the caseload with the assistance of Temporary Hearing Officers M.Stovall and R.Dunn.

     

    Discussion:
    Directors and Staff discussed the Board hiring Temporary Hearing Officers M.Stovall and R.Dunn on 10-21-03 and the two of them applying for the positions, which the Board will be filling permanently, and the Board’s 10-21-03 motion not guaranteeing the temporary hearing officers any particular term of employment.

GENERAL COUNSEL REPORT

  1. 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 and approval in final form on 4-20-04, J.Rohde stated the Board’s proposed changes to Chapter 3 have been approved by the Attorney General’s office and will become effective on 6-4-04.

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.
  1. Pending Request for Extension of Benefits Due to Extreme Financial Hardship: After advising directors that the Board granted a continuance in the case of Ly Nang Dang v. Barber Foods, which was scheduled for a hearing on 5-18-04, due to the death of a member of the plaintiff’s attorney’s family, J.Rohde informed directors that staff will be contacting them shortly to see what date and time is most convenient for them to hold a hearing in the Dang case and commented that the hearing will take approximately four hours and will require the assistance of an interpreter.

     

  2. Bureau of Insurance Proposed Rule, Chapter 561: Directors received a copy of a proposed rule compiled by the Bureau of Insurance and were advised to testify in favor of the rule because it will assist the Board in obtaining accurate data on employee leasing companies. SEE ATTACHMENT A

Discussion on Bureau of Insurance Proposed Rule 561: Directors, Staff and Bureau of Insurance Representative F.Kimball discussed the rule assisting the WCB in being aware of master policies being written for employee leasing companies (Staff noted the Board is not notified of who the client companies are for leasing companies, which can cause confusion at the Board level in trying to figure out who the responsible insurer to notify them of a mediation conference or formal hearing and noted it also results in some disputes amongst insurers); the multi-coordinated policies written by Maine Employers Mutual Insurance Company for its employee leasing companies (Staff advised directors that the Bureau’s proposed rule requires the issuance of a policy in each client’s name, which will also help the Board in monitoring who employers and determining if they are in compliance with the Board’s coverage provisions).

Anthony Monfiletto MOVED THAT THE BOARD TESTIFY IN FAVOR OF THE PROPOSED RULE; Gary Koocher seconded. MOTION CARRIES 7-0.

  1. Request for Review of Hearing Officer’s Decision (Sherri Marshall v. Androscoggin Home Health): Referring directors to Hearing Officer G.Goodnough’s 3-24-04 Request for Board Review of his decision, pursuant to Section 320, in the case of Sherri Marshall v. Androscoggin Home Health, J.Rohde informed the Board that the case involves the interpretation of the fourth edition of the Guide to the Evaluation of Permanent Impairment and stated the Board may want to consider denying the request because of the complexity of the issue, which may be better handled by the Law Court.

Discussion:
Directors and Staff briefly discussed the issue in the Marshall case (Staff noted that in this particular case the employee had three medical opinions addressing permanent impairment – (1) The employee’s treating physician came up with a permanent impairment rating of 15% or 18% and 12% specifically for the back injury; (2) The examiner retained by the employer set the employee’s impairment level at 10%, and (3) The independent medical examiner came up with an impairment rating of 10%. Mr. Rohde noted that the hearing officer noted addressed the two ways of determining permanent impairment – one way being the DRE model which is applicable if the nature of an injury fits in a specific category); permanent impairment being based on a permanent impairment estimate that does not take into account subsequent treatment; the DRE model possibly being in conflict with the statute because it assesses permanent impairment prior to the date of maximum medical improvement; the employee’s treating physician using the range of motion model because of the employee’s two subsequent surgeries (Staff noted the permanent impairment level in the Marshall case was set at 10% for the type of injury and remarked that an additional two percentage points were added for the two subsequent surgeries); directors voting “yes” if they are in favor of granting the Request for Board Review, or “no” if they wish to deny the request and the Legal Division preparing a briefing schedule to send to the parties if the Board grants the request.

Directors and Staff discussed the complexity of the issue in the Hearing Officer’s request in terms of learning the fourth edition which is a fairly technical issue; whether the matter can be addressed by a general policy statement and whether the DRE or range of motion models apply to all classes of injury, or just to back injuries which may be more suitable for a broad policy announcement from the Board.

Chairman Dionne inquired of directors if they wish to vote “yes” to grant review of the case, or “no” to deny review of the Marshall case.

ROLL CALL VOTES:
John Cooney NO
Rodney Hiltz NO
Gary Koocher NO
Paul Dionne NO
Joan Kirkpatrick NO
James Mingo NO
Anthony Monfiletto NO

Conclusion :

The Board, by unanimous vote, denies the Request for Board Review in the case of Sherri Marshall v. Androscoggin Home Health.

  1. Sec. 213 Actuarial Study: Referring directors to his 5-24-04 memorandum regarding the correspondence he received from EPIC Actuaries dated 5-4-04 which addresses the merger of EPIC with Milliman and other issues such as there being no professional fees owed by the Board to EPIC for the work they did on the actuarial study to date and EPIC’s recommendation with respect to to rescinding the RFP, Mr. Minkowsky stated he has provided the Board with a copy of the correspondence from Mr. Metzner and recommended rescinding the contract awarded to EPIC and beginning the process again by issuing another RFP to receive proposals on conducting the actuarial study.

Discussion:
Directors and Staff discussed whether the Board is required to have an actuarial study done (Staff noted it is in the Board’s best interest to do so because there is not a staff member available to perform the industry mix analysis required in the statute and commented that a study must be done at least to determine the permanent impairment issue).

James Mingo MOVED TO TERMINATE THE DECEMBER 31, 2003 AGREEMENT TO PURCHASE SERVICES BETWEEN THE BOARD AND EPIC ACTUARIES, LLC WITHOUT PAYMENT OF ANY FEES TO EPIC ACTUARIES, LLD; John Cooney seconded. MOTION CARRIES 7-0.

Anthony Monfiletto MOVED TO AUTHORIZE STEVE MINKOWSKY TO ISSUE AN RFP FOR THE 2004 AND 2005 ACTUARIAL STUDIES, PURSUANT TO SECTION 213; James Mingo seconded. MOTION CARRIES 7-0.

Discussion:
Directors and Staff discussed whether a study needs to be done if the Board can obtain the necessary information from the Bureau of Insurance (Staff noted a study should be done since it needs to be based on actuarial-sound methodology for the permanent impairment threshold); the actuary using 2004 data for 2005 and making sure that the actuary uses the correct data for both years and Director G.Koocher and A.Monfiletto replacing Directors D.Gauvin and P.Lemaire on the Sec. 213 Committee.

NEW BUSINESS

P.L. 2003, Ch. 608 / Board’s By-Laws: After referring directors to the most-recent version of the Board’s revised by-laws which staff changed to comply with the provisions in P.L. 2003, Chapter 608, J.Rohde informed the Board that the draft by-laws before them contain an amendment on page 4, which was included at the request of the Board.

Maine Workers' Compensation Board
By-Laws

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Agenda

The agenda for Board meetings is normally set at the end of the prior meeting set by the Chair, with input from the Executive Director and Board members. Board members and staff are sources for agenda items. Individuals or groups wishing to address the Board on a specific topic may request time on the agenda by identifying the topic and length of time needed.

The order of business is as follows:

I. Call to Order
II. Approval of Minutes
III. Executive Director Report
IV. General Counsel Report
V. Subcommittee Reports
VI. Old Business
VII. New Business
VIII. Future Agenda Items
IX. Adjournment

Attendance by Board Members

Attendance at scheduled meetings is one of the primary obligations of Board members. The ability of the Board to conduct business is seriously affected when members do not attend or leave a meeting early. In the interest of effective public service and respect for colleagues and staff, this obligation should be taken seriously. If another commitment or emergency prevents attendance at a scheduled meeting, the Board secretary will be notified as soon as possible.

Attendance by Board Staff and Public

All meetings are attended by the Executive Director as Chair, the General Counsel, and the Board secretary. Attendance by other staff varies depending upon the Board's need for information and recommendations. Meetings are open to the public, although an executive session may be called.

Caucus and Recess

A recess is a break in the meeting for lunch or any other purpose. A caucus is an opportunity for labor and/or management members to discuss issues and options prior to further Board discussion or action. The Chair shall declare a caucus or a recess at the request of any member and the minutes will reflect when the caucus or recess was called and when the meeting resumed. Members will take care that caucuses and recesses do not result in the violation of the public right-to-know laws by resulting in the conducting of public business in a private fashion.

Confidentiality

Members have an obligation to appropriately maintain the confidentiality of issues discussed in executive sessions and are mindful of the potential for legal complications to develop if confidentiality is not maintained.

By statute, all of the Abuse Investigation Unit files and many of the compensation claim files are confidential. Complaints and records of continuing or pending investigations are not part of the public record, and must remain confidential until such time as investigations are concluded and action results in the information becoming part of the public record. No details of Board activities in these areas will be released by a Board member until they become part of the public record.

Conflict of Interest

5 M.R.S.A. §18, made applicable to members of the Board by 39-A M.R.S.A. §152(8), prohibits executive employees from personally and substantially participating in an official capacity in any proceeding which, to their knowledge, their spouse, children, partners, prospective employer, or an organization in which they have a direct and substantial financial interest, has a direct and substantial financial interest. It is therefore important for Board members to consider positions and votes carefully in matters which could appear to involve potential financial or competitive advantages for employers, unions, relatives, or associates. In some circumstances, members may have to disqualify themselves from Board deliberations. For example, a member who is directly responsible for negotiating workers' compensation coverage for his or her employer with a particular insurer may not participate in a proposed penalty action against that insurer.

Election and Role of the Chair

Members are required by the Act to elect a Chair on an annual basis upon the expiration of the present Chair's term on February 1. The position alternates between management and labor members. The Chair may vote on all matters before the Board.

The Chair calls the meeting to order as close to the appointed time as possible and directs the order of business, ruling upon points of order and recognizing speakers from the audience. Speakers from the audience will be asked to identify themselves and who they represent. The Chair entertains all motions from members when properly made and in order, states them properly, asks for discussion, submits the question to a vote, and declares the results. The Chair is responsible for maintaining order and appropriate conduct during discussions. The Chair may vote on all matters before the Board.

If the Executive Director is absent from a meeting, an Acting Chair shall be appointed for that meeting by the members of the caucus whose turn it is to appoint an Acting Chair. The first time the Executive Director is absent from a meeting, the Labor Directors shall appoint one of their members as Acting Chair. Thereafter, the right to appoint an Acting Chair shall alternate between the caucuses.

Executive Session

The requirements for entering an executive session are contained in the Freedom of Access law,
1 M.R.S.A. §405. The Board enters executive session by the approval by 3/5 of the members of a public motion which states the precise nature of the executive session. No other matters may be discussed and no final actions requiring a Board vote may occur in executive session. Some of the topics permissible for an executive session are personnel matters, consultation with counsel regarding pending or contemplated litigation, enforcement activities, and discussions of information contained in confidential files.

Facilitation

Parliamentary procedures are generally followed in conducting Board business, although informal discussions may occur prior to a specific motion. When members determine that an issue is more properly addressed by problem solving techniques rather than the parliamentary procedure of stating a position or a solution first, the services of a facilitator may be utilized in a work session.

Ground Rules

Each month's meetings are set the month before. Additional meetings may be set during a month if there is sufficient time to publish the requisite notice.

Meetings begin at 9:00 AM 9:30 AM unless another time is specified on the agenda.

When a scheduled meeting fails to produce a quorum or a quorum is lost, the remaining members may choose to conduct a work session on pending business so long as both management and labor are represented.

Adherence to basic conversational courtesies during meetings is expected from each Board member.

Ideas will be debated, not personalities.

Judicial v. Policy Role

In their policy making roles, members of the Board are charged with the general supervision over the administration of the Act and responsibility for the efficient and effective management of the board and its employees. The Board in general must take an active and forceful role in the administration of the Act to ensure efficiency and performance to the maximum benefit of both employers and employees.

In addition to this policy making role, the Board acts as an intermediate appeal level in cases, referred by hearing officers, which are of significance to the operation of the workers' compensation system. The judicial review function is made upon the record and written briefs only and the decision issued by the Board members is then appealable to the Law Court.

Members' Roles as Public Officials

As reflected in the oath that each member takes, Board members as public officials have a public trust to act for the common good. Consequently, members' conduct must preclude any questions about a member's honesty, fairness, or concern for the public interest.

A Board member may not, other than during the course of a proceeding, communicate directly or indirectly with any person having a specific legal interest in the outcome of an adjudicatory proceeding before the Board regarding any issue of fact, law, or procedure relating to the proceeding unless all parties and Board members are given notice and an opportunity to participate.

Except n any in cases where a members are is a factual witnesses, the Board shall hire a contract hearing officer to hear the case. Otherwise, members should not participate in the formal hearing process in any capacity.

Proposed Legislation

The Executive Director Staff will assist the Board in developing an appropriate and effective response to proposed legislation which is of interest to members and the agency. A majority vote of The Board will take a policy position on proposed legislation when there is unanimous support for that action. If no agreement is reached, the membership of the Board is required to take a policy position on proposed legislation. The result of the vote on proposed legislation shall be part of the Board’s testimony on the proposed legislation. The Board will take a policy position on proposed legislation when there is unanimous support for that action. If no agreement is reached, the agency will provide technical assistance to the Legislature if required.

By statute, the Board may submit its own proposed changes to Title 39-A on an annual basis. The Executive Director, General Counsel, other staff, and members of the Board may identify possible areas of legislative interest. Board staff will prepare a report on suggested technical and substantive changes for Board consideration prior to cloture for the first and second legislative sessions.

Rulemaking

The need for rulemaking is carefully considered in view of the significant commitment of time and resources needed. Areas in which rulemaking may be needed are suggested by Board members and/or staff.

Subcommittees and Task Forces

  1. Standing Subcommittees.
    1. The Board will establish and maintain two standing subcommittees, the Personal Subcommittee and the Budget and Strategic Planning Subcommittee. These two subcommittees shall exist indefinitely as their work is of an ongoing nature. The Board may establish any other standing subcommittees, as necessary, by a majority vote of the Board.
      1. The Personnel Subcommittee shall (1) screen and interview candidates for senior1 positions with the Board, ultimately making a hiring recommendation to the full Board; (2) prepare performance evaluations for the Executive Director, General Counsel, Hearing Officers, and the Board's Administrative Secretary; and (3) perform any other appropriate tasks as assigned by the full Board.
      2. The Budget and Strategic Planning Subcommittee shall have direct oversight of the budgeting process of the agency. This subcommittee shall (1) review and approve all budget documents submitted to the agency; (2) monitor the collection of the Board's assessment and set the rate(s) as appropriate; (3) prepare and revise the agency's strategic plan, working with the legislative committee of jurisdiction; and (4) generally maintain responsibility for the organizational structure of the agency.
    2. MEMBERSHIP: All standing subcommittees shall consist of four three Board members, two one from the labor side, and two one from the management side, and the Executive Director, ex officio. The Executive Director shall not have voting rights on any subcommittee. All subcommittee meetings are open to all non-subcommittee Board members. Any other agency staff may be assigned to assist the subcommittee as needed.
    3. QUORUM: A quorum shall consist of one management Board member, and one labor Board member and the Executive Director... Any non-subcommittee Board member may substitute for a subcommittee member for the purpose of attaining a quorum. No meetings shall take place in the absence of a quorum.
    4. VOTING: Standing subcommittees cannot bind the Board to action, but will make recommendations to the full Board for a vote.
    5. MEETINGS: Subcommittee meetings will be announced at full Board meetings and are open to the public, unless otherwise deemed confidential by statute and action of the Board.
    6. REPORTS: Subcommittees will report to the Board on a regular basis.
    7. MOTIONS: All motions that are prepared by a subcommittee prior to a full Board meeting shall be written and circulated to all members of the Board as time and circumstances permit. A copy shall also be provided to the Board's secretary.
  2. Task Forces
    1. The Board may establish task forces of its membership by a majority vote. Task forces will have a specific goal and a limited time in which to accomplish its goal. The full Board shall establish, by motion, the goal and time deadlines of each task force. The Board may amend these goals and deadlines at any time.
    2. MEMBERSHIP: All task forces shall consist of four three Board members, two one from the labor side, and two one from the management side, and the Executive Director, ex officio. The Executive Director shall not have voting rights on any task force. All task force meetings are open to all non-task force Board members. Any other agency staff may be assigned to assist the task force as needed.
    3. QUORUM: A quorum shall consist of one management Board member and one labor Board member and the Executive Director... Any non-task force Board member may substitute for a task force member for the purpose of attaining a quorum. No meetings shall take place in the absence of a quorum.
    4. VOTING: Task forces cannot bind the Board to action, but will make recommendations to the full Board for a vote.
    5. MEETINGS: Task force meetings will be announced at full Board meetings and are open to the public, unless otherwise deemed confidential by statute and action of the Board.
    6. REPORTS: Task forces will report to the Board on a regular basis.
    7. MOTIONS: All motions that are prepared by a task force prior to a full Board meeting shall be written and circulated to all members of the Board as time and circumstances permit. A copy shall also be provided to the Board's secretary.

    1 "Senior positions" shall be defined as any position which serves "at the pleasure of the Board." This includes mediators and all positions senior thereto.

    Discussion on Board By-Laws:
    Directors and Staff discussed the revision on page 4 that was suggested at the last meeting with respect to stating that a majority vote of the membership of the Board is required to take a policy position on legislative matters and that the result of the vote on proposed legislation shall be part of the Board’s testimony on proposed legislation; the language on page 1 regarding attendance by Board staff and the public and the language being revised with respect to the Executive Director being crossed out (Mr. Rohde stated he removed the Executive Director from the language because he is covered by the language in the attendance portion of the by-laws. A brief discussion then took place on the Executive Director now serving two roles – that of Executive Director and Board Chair; leaving the words “Executive Director” in the paragraph; including language on page 1 regarding the Executive Director also serving as the Board’s Chair, and revising the language on page 2 regarding the election and role of the chair since the Chair is no longer an elected position); the typographical error on page 1 regarding the language that has been erroneously deleted; including language in the Board’s by-laws regarding who will sit in as Chair if the Executive Director is unable to attend a meeting (directors briefly conversed as to what process should be followed with respect to an alternate chair conducting the meetings and including an amendment that states a Labor and Management representative will serve alternately in the absence of the Executive Director) ; the statute only requiring four members, a voting quorum, to be present to hold a board meeting and amending the By-laws to state the Board’s vote on legislation is either a unanimous vote in favor of a bill, or a majority vote against the bill so that the Legislature is aware of the Board’s actual vote on various proposals.

James Mingo MOVED TO APPROVE THE BY-LAWS AS AMENDED; Gary Koocher seconded.

Discussion Continued:
Directors and Staff discussed the Board ensuring full board support of its vote on legislative proposals (Director Cooney stated a vote should speak for itself and stated directors have the ability to respond to inquiries as to director’s personal opinions on legislative proposals), the Board’s voting record possibly being helpful to Joint Standing Committee members, Board members having the ability to testify on their own behalf on legislative matters, no director testifying as a Board member on a proposal addressed by the Board without permission of the Board to do so; a majority vote on a piece of proposed legislation being the board’s position on that proposal; Board decisions on legislation simply being recommendations for the Legislature; directors representing the Board, their constituents and various industry groups and their employers at various times while they serve on the Board; directors not speaking on behalf of the Workers’ Compensation Board when attending legislative hearings on their own behalf and Chairman Dionne representing the Board’s position on legislation with respect to whether it is in favor, against or neutral on a specific bill; Board discussions that took place at prior meetings on those directors who may have represented themselves as a Board member and offering opinions that may have been contrary to the Board’s position; including language in the by-laws that state “Any individual Board member that is speaking to a Legislator or a Joint Standing Committee of the Legislature state that they are voicing their own opinion and not necessarily the opinion of the Board”; by-laws being a governance of an organization and not necessarily excluding individuals from acting on their own behalf; some restrictions being placed on Board members as it relates to outside activities and taking action contrary to Board positions possibly leading to the removal of a member from a Board; a director’s employment being placed in jeopardy in the past when he acted as a Board member on a legislative matter; the difficulty in testifying as an individual because the community oftentimes recognizes individuals as Board members; directors roles as public officials; the legal opinion the Board received from the Attorney General’s office on matters of conflict as Board members, which involved the issue of a Board member testifying at a formal hearings (it was suggested that the language in the adjudicatory proceeding section be amended by removing some language so that it reads “A Board member may not communicate directly or indirectly with any person having a specific legal interest in the outcome of an adjudicatory proceeding before the Board regarding any issue of fact, law or procedure and perhaps further specifying “any issue relating to adjudicatory proceedings.”) ; directors not having the ability to testify as a witness, or appear on the witness list if he or she is an employee of the employer involved in the workers’ compensation case and the Board having the ability to hire a contract hearing officer to handle adjudicatory matters if they find it necessary; staff’s recommendations with respect to Board members not attending hearings on formal hearing cases to observe the proceedings if their employer is involved in the case and postponing final action on the by-laws to the next meeting.

Anthony Monfiletto MOVED TO TABLE THE PROPOSED BY-LAW CHANGES TO THE JUNE 15, 2004 MEETING; Gary Koocher seconded. MOTION CARRIES 7-0.

  1. Medical Consultant Contract: Directors were advised that their contract with Dr. Dillihunt will expire on 6-30-04 and that they have the authority to extend his contract for another two years without going through the RFP process again. Staff noted the contract is $10,000 annually.

Discussion:
Directors and Staff discussed Dr. Dillihunt’s assistance with finding qualified independent medical examiners to ensure that the Board is complying with the Law Court’s decision in the Lydon case; contract expiring on 6-30-04; the original contract with Dr. Dillihunt totaling $10,000; renewing the contract for two years, which is the maximum allowed under the State’s provisions.

James Mingo MOVED TO RENEW DR. DILLIHUNT’S $10,000 MEDICAL CONSULTANT CONTRACT FOR TWO YEARS; Anthony Monfiletto seconded. MOTION CARRIES 7-0.

  1. IME Subcommittee Update: Directors were advised that the IME Subcommittee met recently to review the Law Court’s decision in the Lydon case which addresses examinations performed under Sec. 207 and Sec. 312 and of the group’s selection of 11 examiners that they believe meet the qualifications. Staff reported that the Board had 30 doctors that were performing independent medical examiners under Sec. 312 and noted it has been reduced to 14 physicians because of the Lydon decree. Directors were also informed of staff’s receipt of letters from Dr. Newkirk who is resigning on 9-30-04 and from Dr. White who is asking the Board not to send him any cases until September because of his overwhelming caseload at the present time;

Discussion:
Directors and Staff discussed the IME Subcommittee’s approval of 11 independent medical examiners (Staff noted that the Committee’s approval of two of the IME’s is contingent on their opening of an active treating practice since one of them is a professor and the other one is undergoing treatments for cancer); the IME Subcommittee consisting of Chairman Dionne and Directors Mingo and Kirkpatrick; the group being unanimous in its recommendation that the 11 individuals serve as an independent medical examiners for the Board; the Board’s statutory provisions requiring the examiners to be board-certified in their specialty which is indicated on the list; one of the physicians being board-certified as a family practitioner; the statutory provisions with respect to certification and whether some of the specialties listed have met the specific certification criteria; pain management becoming a major area of medicine; reviewing the language with respect to certification to ensure that the 11 doctors recommended are board certified; how individuals become certified in pain management; IME Subcommittee Members J.Mingo and J.Kirkpatrick having copies of the individual’s CV’s if anyone is interested in reviewing their paperwork and adding the item to the next agenda to continue the discussions on whether the 11 doctors the group is recommending are board-certified.

ADJOURNMENT

James Mingo MOVED TO ADJOURN TODAY’S MEETING; Anthony Monfiletto seconded. MOTION CARRIES 7-0.

The meeting formally adjourned at 10:57 a.m.

 


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