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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.
PRESENT: Paul Dionne, Gary Koocher, John Cooney, James Mingo, Anthony Monfiletto,
Rodney Hiltz, and Joan Kirkpatrick.
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.
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).
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
- “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
0301 Flat-File Format.
- 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.
- All Notices of Controversy (WCB-9) shall be filed with the Board by EDI not later than July 1, 2005.
- All Memoranda of Payment (WCB-3) shall be filed with the Board by EDI not later than January 1, 2006.
- 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.
- The Board file shall include all electronic submissions, regardless of whether a paper copy is physically in the file.
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.
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
The Board, by unanimous vote, denies the Request for Board Review in the case of Sherri Marshall v. Androscoggin Home Health.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
James Mingo MOVED TO APPROVE THE BY-LAWS AS AMENDED; Gary Koocher seconded.
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.
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
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.
James Mingo MOVED TO ADJOURN TODAY’S MEETING; Anthony Monfiletto seconded. MOTION CARRIES 7-0.
The meeting formally adjourned at 10:57 a.m.
Return to 2004 Board Minutes