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A meeting and public forum of the Workers’ Compensation Board of Directors was held on Tuesday, June 15, 2004 at the Board's regional office in Caribou, Maine (One Vaughn Place, 43 Hatch Drive).
PRESENT: Paul Dionne, Gary Koocher (via telephone), John Cooney (via telephone), James Mingo, Anthony Monfiletto, Rodney Hiltz and Joan Kirkpatrick.
John Cooney MOVED TO APPROVE THE MINUTES OF JUNE 1, 2004; Gary Koocher seconded. MOTION CARRIES 7-0.
Joan Kirkpatrick MOVED TO GRANT A 2% SALARY INCREASE TO THE BOARD’S CONFIDENTIAL EMPLOYEES, RETROACTIVE TO 2003; Rodney Hiltz seconded.
Directors and Staff discussed the item not being on today’s agenda and not all directors being prepared to act on the matter at this time; the Budget Subcommittee’s deliberations at the last meeting (Directors and Staff talked briefly about the e-mail J.Rohde received from P.Schlegel on the matter, a misunderstanding on what would take place after the last meeting with respect to obtaining additional information in order to make an informed decision on the matter and tabling the motion to allow Staff to contact Mr. Wills to obtain clarification on how to proceed); Chairman Dionne’s remarks regarding his plans to abstain from deliberating and voting on the proposed motion (P.Dionne informed the Board that he will not be participating in the deliberations and vote on the motion because he, too, is a confidential employee of the Board, which is a conflict of interest for him because he would gain financially if the motion passes); the budgetary issues involving the increase and supporting the proposal today to ensure funds are available for the salary increases (Staff noted the reserves from FY04 in Personal Services will fund the retroactive portion of the salary increase and noted the budget for FY05 already includes the 2% increase. Staff also explained that if the Board presents the salary increase to confidential employees after 6-18-04 that it will need to find funds from the FY05 budget as opposed to using savings that accrued during FY04); P.Dionne, the Board’s Executive Director, also being a member of the Board which allows him to vote on all matters before the Board (Chairman Dionne suggested amending the motion to exclude the Executive Director from the proposal. Director Monfiletto expressed concerns with excluding the Executive Director from the proposed motion since the Executive Director is also entitled to a salary increase, regardless of his participation on the Board. Director Monfiletto stated the Executive Director sits in on board meetings in his capacity as a Board member and the Chair and stated he should not be penalized simply because he is also a confidential employee of the Board. In closing, P.Dionne stated he does not plan to vote on the proposal because of the conflict of interest he has due to the financial gain); the Board having the ability to apply its savings from FY04 towards Personal Service expenditures (Staff noted that once the fiscal year ends that the savings in Personal Services goes into the Board’s reserve account. In response, Director Cooney stated the Board has the authority to access its reserve account) ; the Budget Subcommittee asking for additional information on the Board’s responsibilities as it relates to confidential employees; voting in favor of the proposed motion to ensure confidential employees receive the same raise other Board and State employees received in 2003; the estimated cost of the 2% salary increase totaling approximately $28,000 for FY04; other State agencies providing their confidential employees with a comparable 2% salary increase at the time the increase was awarded to other State employees; one of the Budget Subcommittee’s questions being what effect, if any, a favorable vote would have on the confidential employees who were working for the Board in FY03 that did not receive the increase prior to leaving the Board (Director Koocher stated he wanted an answer to that question prior to taking formal action on the matter. Staff stated the action should not have an impact on those employees because they are no longer on the Board’s payroll and would, therefore, most likely not be affected by the Board’s vote) and Chairman Dionne abstaining from voting because of the conflict of interest he has in his dual capacity since he is also the Board’s Executive Director, which entitles him to the 2% salary increase, if granted.
Chairman Dionne announced he is abstaining and inquired of each director if they are in favor of awarding a 2% salary increase to the Board’s confidential employees:
James Mingo Yes Rodney Hiltz Yes Anthony Monfiletto
Joan Kirkpatrick Yes Gary Koocher Present John Cooney Yes
MOTION CARRIES 5-1-1 (Chairman Dionne abstained).
Directors and Staff discussed the rationale for granting the request (Staff noted the request was granted because the Legislature is not in session and noted such requests are normally approved through the Legislature’s financial order process); the last five months of the contracts being included in the Governor’s Supplemental Budget (Staff noted Commissioner Wyke has agreed to fund the contract positions for only the first seven months and stated that if she had not approved the funding that the contract employees would have been terminated on 6-30-04).
Directors and Staff discussed the Committee meeting again at 1:00 p.m. on 7-6-04; Medicare’s reimbursement levels being based on an RBRVS system, which includes certain modifiers; the Federal Medical Fee Schedule being applicable to Federal workers’ compensation cases, and many states using the RBRVS system to design their own medical fee schedules.
Directors and Staff discussed Hearing Officer M.Stovall issuing his decision on 5-12-04 who then received a fax from the employer’s attorney asking him to forward it on to the Board for review, which was done on 5-19-04 (Staff noted the employee’s Advocate objects to the filing and asserts that the request is untimely because it was not filed within five days); Sec. 320 of the statute requiring Requests for Board Review be filed within five days of issuing a decision (Staff advised directors that the employee is arguing that it means within “five calendar days” and therefore, believes the request is late and noted the employer’s attorney argues, by analogy, that Rule 6 of the Maine Rules of Civil Procedure says if the prescribed time period is less than seven days -- intermediate Saturdays and Sundays and legal holidays are excluded and remarked that in this particular case if you remove a Saturday and Sunday the request was filed within five days, which makes it timely); the relevant document being the Hearing Officer’s 5-19-04 Request for Board Review since the parties do not have the right to seek Board review of a hearing officer’s decision under Sec. 320 of the Act (In response to Director Monfiletto’s inquiry as to whether the Board should act by motion to accept or reject the objection and then proceed to vote to grant or deny the hearing officer’s request, Staff stated the Board can discuss the issues outlined in the objection and then act on the objection by a motion to grant or deny the objection. Mr. Rohde also noted that if the Board grants the objection and finds that the request is untimely that it does not need to act on the hearing officer’s request because the Board would be dismissing the matter as untimely, and further informed the Board that it is best to grant or deny the request noting a “no” vote would result in the Board proceeding to the next question, which is whether to grant or deny the request and remarked that a “no” vote would sustain the objection.)
Chapter 14 of the Board’s rules stating a hearing officer may request review within five days of issuing a decision, which goes on to say that the Board will distribute copies of the decision to all Board members within five working days; “working days” being Monday through Friday and “days” being calendar days and the Board’s rules addressing “working days”, the employer’s attorney referring to the Maine Rules of Civil Procedure, which by definition do not apply to workers’ compensation proceedings (Staff noted the employer is simply arguing by analogy that the Board should adopt the same policy in this situation) and following the language in the Board’s statute when ruling on the objection.
Anthony Monfiletto MOVED TO GRANT THE OBJECTION OF THE EMPLOYEE’S ADVOCATE; Joan Kirkpatrick seconded.
Mr. Rohde pointed out that if the Board votes “yes” that it will be determining that the request was not made timely and that if it votes no” that it was made timely and that the Board should proceed on to the second question -- whether to grant or deny the Hearing Officer’s Request in the Williams case.
Chairman Dionne inquired of directors if they are in favor of granting the objection:
Gary Koocher No Rodney Hiltz Yes John Cooney
Joan Kirkpatrick Yes James Mingo No Anthony Monfiletto Yes Paul Dionne No
MOTION FAILS 4-3 (Directors Koocher, Cooney, Mingo and Dionne opposed).
Directors and Staff discussed whether the Board would be changing the definition of “days” in its rules if it voted to deny the objection; the Board having polices and procedures that deal with “calendar days” and “working days”, and whether the Board should construe the language to mean “calendar days” if the Act does not address “working days” (Staff noted that the Board would presumably be saying, by its action, that intermediate weekends will not be counted in determining the “five-day timeframe” under Section 320); Chairman Dionne voting “no” on the above motion so that the Board can proceed to hearing the merits of the case (Chairman Dionne stated he voted in opposition to the objection so that the Board could proceed to its discussion on the merits of the Williams case); the Board defining “within five days” to mean an intervening Saturday or Sunday will not be counted towards the “five days”; whether the Board changed its rules today when it voted on the objection and defined “ days” (Staff explained that the Board does not have the ability to change, or adopt a rule by a simple majority vote because the Board must go through the APA process to do so. In response, Director Monfiletto stated he is concerned that the Board’s action on the objection may have in fact changed the Board’s rules); the relevant issue in the Williams case being the interpretation of a decree under Sec. 214(1) with respect to partial incapacity and the allocation of the burden of proof under that section; the employer and insurer arguing, in defense of the claim, in part, that the employee was not entitled to partial incapacity benefits because the employee refused a bona fide offer of reasonable employment without good cause and in support of their argument presented the testimony of one of the employer’s Division directors who testified about the jobs that had been offered to the employee (Staff informed directors that the Hearing Officer did not find the witness’ testimony persuasive and ruled against the employer and insurer on this issue, Mr. Rohde noted it appears to be that the employer argued they were unfairly given the burden of proof on the issues arising under Sec. 214); hearing officers having the ability to seek review of their decisions if a case involves a significant issue with respect to the operation of the workers’ compensation system (Staff noted the allocation of burden of proof is significant, but noted the case before the Board may not raise the issue as squarely as the Board would like) and the parties having the ability to proceed to the Law Court if the Board denies Hearing Officer Stovall’s request.
Chairman Dionne inquired of directors if they were in favor of denying, or granting the Hearing Officer’s request in the Williams case:
Rodney Hiltz Deny John Cooney Deny Joan Kirkpatrick
Gary Koocher Deny James Mingo Deny Anthony Monfiletto Deny Paul Dionne Deny
MOTION CARRIES 7-0
Conclusion: The Request for Full Board Review in the case of Williams v. Robert Half International, Inc. is denied.
The agenda for Board meetings is
normally set at the end of the prior meeting
set set by the Chair, with input from the Executive Director and Board 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 VIII. 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 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.
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 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 alternative 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.
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, 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 Iany any cases where a member s are is
a factual witness es,
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 DirectorStaff 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 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. 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, tThe
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 sessionss.
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
I. Standing Subcommittees.
A. 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
senior positions 1 with the Board, ultimately making a hiring recommendation
to the full Board; (2) prepare performance evaluations for the
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.
B. MEMBERSHIP: All standing subcommittees shall consist of
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.
C. QUORUM: A quorum shall consist of one management Board member,
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.
D. VOTING: Standing subcommittees cannot bind the Board to action, but will make recommendations to the full Board for a vote.
E. 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.
F. REPORTS: Subcommittees will report to the Board on a regular basis.
G. 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.
1 "Senior positions" shall be defined as any position which serves "at the pleasure of the Board." This includes mediatiors and all positions senior thereo.
II. Task Forces
A. 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.
B. MEMBERSHIP: All task forces shall consist of
four three three Board members,
two one one from the labor side, ,and two one 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.
C. QUORUM: A quorum shall consist of one management Board member,
one labor Board member and the Executive Director 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.
D. VOTING: Task forces cannot bind the Board to action, but will make recommendations to the full Board for a vote.
E. 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.
F. REPORTS: Task forces will report to the Board on a regular basis.
G. 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.
Directors and Staff discussed revising the language on page 4 to a witness.
Anthony Monfiletto MOVED TO ACCEPT THE WORKERS’ COMPENSATION BOARD BY-LAWS, UPDATED JUNE 15, 2004, AS AMENDED; James Mingo seconded. MOTION CARRIES 7-0.
PROPOSED SECTION 312 IME PHYSICIANS
Thomas E. McDermott
Kennebec Medical Associates
13 Railroad Square
Waterville, ME 04901
Specialty: Family Practice
Subspecialty: Addictive Medicine
William L. Griffith, MD
13 Railroad Square
Waterville, ME 04901
Specialty: Internal Medicine
Subspecialty: Substance Abuse Treatment
Peter Y.K. Leong, MD
38 Penn Plaza
Bangor, ME 04401
Subspecialty: Pain Management
Jonathan S. Herland, MD
Penobscot Pain Management
38 Penn Plaza
Bangor, ME 04401
Subspecialty: Pain Management
Peter J. Haughwout, MD
16 Middle Street
Brunswick, ME 04011
David B. Lobozzo, MD
417 Congress Street, Suite 420
Portland, ME 04101
Charles R. Perakis, D.O.
38 Jones Creek Drive
Scarborough, ME 04074 (contingent on active, treating practice)
Paul A. Genova, MD
45 Prospect Street
Portland, ME 04103-4017
Specialty: Psychiatry (contingent on return to active, treating practice)
Directors and Staff discussed the Section 312 IME Subcommittee’s deliberations on the above doctors, and not appointing Drs. Perakis and Genova at this time because they do not have an active treating practice (Staff noted the Board’s rules state that independent medical examiners need to have an active treating practice and noted it has been determined that the last two doctors do not have an active treating practice at this time).
James Mingo MOVED TO ACCEPT AS SECTION 312 INDEPENDENT MEDICAL EXAMINERS THOMAS E. MCDERMOTT, WILLIAM L. GRIFFITH, PETER Y.K. LEONG, JONATHAN S. HERLAND, PETER J. HAUGHWOUT, M.D., AND DAVID B. LOBOZZO; Joan Kirkpatrick seconded. MOTION CARRIES 7-0.
Directors and Staff discussed the Board considering an indexing plan to cover automatic payroll increases when the cost of doing business goes up because of contractual increases and the Budget Subcommittee reviewing the Board’s proposed budget and draft legislation in the near future.
James Mingo MOVED TO ADJOURN TODAY’S MEETING; John Cooney seconded. MOTION CARRIES 7-0. The meeting formally adjourned at 5:58 p.m.
Chairman Dionne, acknowledging the absence of public participants at today’s public forum, called the public forum to order at 7:03 p.m. and closed the session at 7:13 p.m.