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WORKERS' COMPENSATION BOARD
Board of Directors’ Meeting
August 3, 2004

A meeting of the Workers’ Compensation Board of Directors was held on Tuesday, August 3, 2004 at the Board's Central Office in Augusta, Maine (AMHI Complex, Deering Building, Rm. 170). Chairman Dionne called the meeting to order at 10:06 a.m.

ROLL CALL

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

MINUTES

Gary Koocher MOVED TO APPROVE THE MINUTES OF JUNE 15, 2004 AND JULY 20, 2004; Joan Kirkpatrick seconded. MOTION CARRIES 5-0.

CHAIRMAN REPORT

  1. August 17 Meeting / Public Forum: After advising directors of the need to possibly change the Board’s 8-17-04 business meeting to the following Tuesday, on 8-24-04, and to reschedule the public forum originally scheduled for that day because there are several directors who cannot attend the sessions in Lewiston, Chairman Dionne inquired as to the availability of the Board members on 8-24-04 and asked directors if they object to changing the next meeting to the 24th of August and rescheduling the public forum.
Discussion:
Directors and Staff discussed the Board member’s availability to attend a board meeting on 8-24-04 in Augusta (Directors Kirkpatrick, Cooney, Mingo and Dionne stated they are available to attend a business meeting on 8-24-04 and Director Koocher noted he will not be available on that day due to a prior commitment. Chairman Dionne noted he will also ask staff to contact Director Hiltz to see if he is available on the 24th of August before he officially changes the date of the next meeting); rescheduling the 8-17-04 public forum that was going to be held at the Lewiston Regional Office; holding a Budget Subcommittee prior to the meeting of 8-24-04 to allow the Subcommittee members to review the biennial budget figures for FY05/06 and scheduling the regular board meeting for 10:00 a.m. that morning to give the Subcommittee ample time to meet with staff and deliberate on the budget for those two years.
Gary Koocher MOVED TO CHANGE THE BOARD MEETING OF AUGUST 17, 2004 TO AUGUST 24, 2004; John Cooney seconded. MOTION CARRIES 5-0.
  1. Introduction of New NCCI Representative: Attorney Harold Pachios introduced Laura Backus Hall, NCCI’s new Regional Director, to directors, staff and participants. Mr. Pachios informed directors that Ms. Hall replaces Former Director Ken Christensen and noted prior to joining NCCI she was a Director for the workers’ compensation agency in Vermont. Chairman Dionne congratulated Ms. Hall on her new appointment and commented that he has worked with her in the past – both in her position with the State of Vermont and when she participated in the International Association of Industrial Accidents Boards and Commissions’ activities.

SUBCOMMITTEE REPORTS

Budget Subcommittee: P.Dionne announced the Budget Subcommittee’s plans to meet with staff at 8 o’clock on 8-24-04 to review the biennial budget figures for fiscal years 2005 and 2006.

EXECUTIVE DIRECTOR REPORT

  1. Cancellation of October 5 Board Meeting: After advising directors of a scheduling conflict between the Board’s meeting of 10-5-04 and the 2004 Comp-Summit conference, which will be held in Carrabassett Valley on October 3, 4 and 5 -- an annual event attended by both Board members and staff, Chairman Dionne recommended canceling the Board’s 10-5-04 meeting or changing the meeting to another day because of the scheduling conflict.

Discussion:
Directors and Staff conversed briefly with respect to canceling the Board meeting scheduled for 10-5-04 because of the anticipated scheduling conflict; Board members and Senior Staff members serving on various panels at the annual conference; the Board’s resolution of several agenda items over the last few months, which has resulted in the Board dealing with fewer and fewer items at its business meetings and the Board also having an opportunity to meet during the Sugarloaf conference, if necessary.

Gary Koocher MOVED TO CANCEL THE MEETING OF OCTOBER 5, 2004;
John Cooney seconded. MOTION CARRIES 5-0.

  1. Hearing Officer Vacancies: Executive Director P.Dionne advised the Board that Personnel Subcommittee Members P.Dionne, R.Hiltz and G.Koocher interviewed ten candidates on 6-22-04, 6-23-04 and 6-24-04 for the two hearing officer vacancies and stated the Subcommittee recently discussed the interviews during a telephonic conference. Mr. Dionne informed directors that the Subcommittee will be providing a recommendation to the Board at its meeting of 9-7-04.
  2. Deputy Director of Business Services Vacancy: P.Dionne reported that the Budget Subcommittee met this morning to discuss the DDBS candidates who had been interviewed on 7-19-04 and stated the Subcommittee will be making a recommendation to the Board at its next meeting of 8-24-04.

  3. Chapter 5 Consensus-Based Rulemaking Committee: P.Dionne informed directors that the Chapter 5 Consensus-Based Rulemaking Committee will meet again on 9-7-04 to continue the discussion from their meeting of 7-6-04 at which time the group discussed the conversion factor and talked about whether or not ambulatory surgical care centers and pharmaceutical charges should be subject to the fee schedule and whether inpatient hospital services should be included. Staff also advised directors there may be some agreement on ambulatory surgical care centers and stated the group was initially supposed to hold three meetings, but that it may need additional time to deal with the issues if a consensus is not reached on the major issues. Directors were also advised that the Committee expects to report back to the Board after the second meeting in September.
  4. Lewiston Sun Journal Article (“Report: Workers’ Compensation Improving”): Referring to a Lewiston Sun Journal article entitled “Report: Workers’ Compensation Improving.”, written by K.Skelton, Executive Director P.Dionne stated the 7-28-04 article covers the 2004 Annual Compliance the Board approved at its last meeting. In closing, Mr. Minkowsky noted the compliance data will be used to identify entities that continue to be habitually in poor compliance, particularly out-of-state third-party administrators.

Discussion:
Directors and Staff briefly discussed the MAE Program’s audit schedule (Staff noted there are several audits that have been completed, which have resulted in signed Consent Decrees); the Board’s unexpected loss of its Auditor II who recently moved to Florida, which as created a large audit backlog (Mr. Minkowsky advised directors that he recently interviewed three candidates to fill her position and stated the individual he is considering has a CIA certificate and a Master’s Degree in Accounting and Auditing and that she is also being considered for employment by two other State agencies).

GENERAL COUNSEL REPORT

  1. Superior Court Ruling (Lindsay Knapp v. Maine Workers’ Compensation Board/MEMIC): General Counsel J.Rohde, referring to the Superior Court’s 6-25-04 decision in the Knapp case, explained that the Court upheld the hearing officer’s decision in the case and denied Ms. Knapp’s appeal on all grounds. Mr. Rohde advised directors that the decision has not been appealed.
  2. Law Court Decision (Michael Maietta v. Town of Scarborough): Directors received a copy of the Law Court’s 7-27-04 decision in the Maietta case which involves a police officer who had a stress claim and alleged discrimination. Mr. Rohde noted the employee did not prevail on the issue of his workers’ compensation benefits, but did prevail on his discrimination claim. Staff noted the Court vacated the hearing officer’s decision and remanded the matter back to the Board for further proceedings.

Discussion on the Law Court’s 7-27-04 decision in the Maietta case:
Directors and Staff discussed three areas of interest in the Court’s decision in the Maietta case, such as the hearing officer ruling on the case, pursuant to a signed Contingent Arbitration Agreement, which states that if the hearing officer was ultimately determined not to have authority that the ruling would be considered an arbitration decision (Staff noted that an arbitration decision must be appealed within 20 days with no opportunity to file a Motion for Findings of Fact and Conclusions of Law. Mr. Rohde noted the parties eventually filed Motions for Findings and that the Court, under the circumstances, did not dismiss the appeal as untimely); another issue in the case being the hearing officer not entering into evidence a decision rendered by a Labor Arbitration Panel (Mr. Rohde advised directors that the Court said the hearing officer should have admitted the information into evidence because it has sufficient indicia of reliability and was relevant); the Court’s decision possibly opening the door to questions about whether employment decisions or social security disability decisions are to be considered viable evidence in a workers’ compensation claim; the Law Court’s ruling on the discrimination claim completing what they addressed in the cases of Laskey and Gendreau, which also deal with discrimination (Staff noted the Court seems to have moved away from Lindsey v. Great Northern Co. case and talks about the motivation of an employer in making an adverse employment decision in the Maietta case and remarked that it was the primary factor in ruling discrimination)

OLD BUSINESS

  1. Board Public Forums: Following up on the Board’s recent deliberations regarding the low turnout at the Board’s public forums over the last year or so and the concern some Board members have expressed as to whether or not the Board’s public comment sessions are still worthwhile and a good use of the Board’s resources, Chairman Dionne stated the Board may want to decide how best to proceed with its future public forums and noted the Board will also want to address the issue again in December when it sets the 2005 meeting dates.

Discussion:
Directors and Staff discussed the Board holding a lengthy discussion at a future meeting as to whether the Board should continue holding public forums, which will also give the Public an opportunity to address the Board on the issue; the Board changing the time of public forums in 2004 to 7:00 p.m., after receiving comments and suggestions that it should hold evening public comment sessions since some individuals may not be attending the Board’s public forums because of their employment commitments (Director Mingo pointed out that the Board’s recent public forum, held on 6-15-04 in Caribou, resulted in no one showing up and remarked that public forums are no longer a good use of the Board’s resources); the low turn-out at public forums possibly being related to individuals having fewer issues of concern to bring to the Board’s attention, such as the concerns that have been expressed in the past about the delays in the Board’s dispute resolution process (Chairman Dionne advised directors that he is also receiving less calls from Legislators who are calling on behalf of their constituents. It was also noted that there are fewer controversial issues being addressed by the Board that may be of concern to the public); whether there is a need for public forums since the Board’s regular business meetings are open to the public (Workers’ Compensation Coordinating Council Representative M.Mayo noted the Board does have some restrictions with respect to what cases it can deal with at its public forums and remarked that the Board should be able to accommodate those individuals who wish to speak with the Board about various items by asking for their feedback at regular board meetings. Ms. Mayo also noted the Board has the ability to schedule a public forum at any time it deems one is necessary); the Board holding five public forums a year – one at each of its regional offices; a suggestion that the Board include a public forum session on its regular agendas, perhaps quarterly, in order to give people an opportunity to address the Board on specific issues (Director Mingo suggested holding those quarterly sessions at the Board’s regional offices in order to accommodate the public who would have to travel to Augusta – the site of the Board’s monthly business meetings); Public Participant J.Greenier’s suggestion with respect to the Board conducting a survey to see what interest there is in the Board’s public forums (Mr. Greenier alleged that some people may not be attending the Board’s public forums because they believe their concerns are not being addressed) and readdressing the future of public forums in December when the Board receives a draft meeting schedule for 2005.

  1. Actuarial Study (See 39-A M.R.S.A. §213): Chairman Dionne advised directors that he added the item to today’s agenda to receive an update from the Deputy Director of Benefits Administration who will be publicizing a Request for Proposal to receive bids from actuarial firms interested in performing an actuarial study of permanent impairment data and compiling a report for the Board so that it can proceed with its statutory obligation in setting the permanent impairment threshold for calendar
    years 2004 and 2005. Mr. Minkowsky informed the Board that the Bureau of Purchases has disencumbered $30,000 for the actuarial study and stated the Board had awarded the contract work to EPIC Actuaries, but withdrew the contract upon learning that EPIC was purchased by another company because work cannot be subcontracted without prior approval. Mr. Minkowsky stated he will be publishing another RFP in the very near future so that the Board can begin the process over again.

Discussion:
Directors and Staff discussed the data that will be studied during the actuarial study
(Staff noted the data to be reviewed will be discussed when the Sec. 213 RFP Committee meets with the various actuaries who submit a proposal on performing the work under Sec. 213); a formal hearing decision rendered by Hearing Officer G.Goodnough which deals with the models used in assessing an employee’s level of permanent impairment -- the diagnostic model and the range-of-motion model (Attorney A.Muir noted those cases that are close to the threshold are normally between 10% and 15% which are mostly back injuries and explained that the diagnostic model places the injuries at 10% and that the range-of-motion model results in the same people receiving higher assessments at between 17% or 18%. Mr. Muir advised directors that Hearing Officer Goodnough stated that he not only prefers the range-of-motion model, but that he is compelled to use it as a matter of law because of his interpretation of the statute. Mr. Muir noted a problem arises with many cases that have higher assessments because it undermines the integrity of the data because a determination must be made as to how many of the those assessments are injuries such as back injuries that were assessed improperly because it was based upon the alternative model. Mr. Muir stated another problem arises with the Kotch case wherein permanent impairment is redefined because of the stacking of injuries. Mr. Muir explained that most people believe there are no cases in the database that reflect that type of stacking and that even when a case is settled the permanent impairment level is not necessarily considered because the parties simply want to settle the case); maintaining the integrity of permanent impairment data (it was noted that an actuary will make the same kind of assumptions and will make the best estimate as to how many cases involved post-1993 injuries, occupational injuries, etc.); the numerous cases that have been decided based on the diagnostic model (Attorney J.Case pointed out that the actuary will be paid $30,000 for performing the work under the Board’s RFP and stated the firm will be required to follow the language in the statute and that the individual will have an opportunity to meet with the Sec. 213 RFP Committee to receive guidance on what has been going on in Maine with respect to permanent impairment assessments); the statute requiring the Board to hire an actuary; the Board considering the issue when determining how it will guide the actuary chosen to do the work (Director Cooney asked Mr. Minkowsky to put together a working document on the various data-related issues to assist the Board); the Sec. 213 RFP Committee interviewing the actuarial firms who submit a bid to perform the actuarial study, which will allow it to flesh out some of the issues; the Board’s RFP paralleling the language in the statute; staff providing the Sec. 213 RFP Committee members with a copy of the interview questions that will be used during the actuarial interviews; the Sec. 213 Request for Proposal (RFP) pertaining to data from calendar year 2003 for the threshold level effective on 1-1-04 and another report for the threshold level that will be effective on 1-1-05 (Staff noted the RFP will be for both years and commented that the Board will receive two separate reports from the actuarial firm approved to do the work); the initial report prepared by Steve Glicksman being for only one year and the Sec. 213 RFP Committee presenting its recommendation to the Board after it interviews the actuarial firms who submit a bid to do the work.

ADJOURNMENT

Gary Koocher MOVED TO ADJOURN TODAY’S MEETING; James Mingo seconded. MOTION CARRIES 5-0.

The meeting formally adjourned at 10:47 a.m.


Return to 2004 Board Minutes