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A meeting of the Workers’ Compensation Board of Directors was held on Tuesday, August 24, 2004 at the Board's Central Office in Augusta, Maine (AMHI Complex, Deering Building, Rm. 170). Chair Dionne called the meeting to order at 10:55 a.m.
PRESENT: Paul Dionne, Rodney Hiltz, John Cooney, James Mingo, Joan Kirkpatrick,
and Anthony Monfiletto (participated via telephone).
ABSENT: Gary Koocher.
John Cooney MOVED TO ACCEPT THE AUGUST 24, 2004 MINUTES; Joan Kirkpatrick seconded. MOTION CARRIES 4-0-2 (Directors Hiltz and Monfiletto abstained).
In the case of Charles Connor v. New Balance Athletic Shoe Co. a motion filed by the employee for extension of time to file the required information in Appendix I has been received. The reason for the request was a Request for Provisional Order had been filed on the basis that the 21-day suspension letter the employee received did not contain the notice required by the Board’s rule about having 30 days to file a petition for extension. In the provisional order request submission, the employee’s Advocate also mentioned that permanent impairment is an issue. The employee is alleging permanent impairment in excess of the threshold of 11.8% for his date of injury. The employer objected to the motion for extension of time, responding to the initial argument that the 21-day suspension did not contain the appropriate language and therefore benefits should continue. The request for a provisional order was denied by the Hearing Officer, benefits were not ordered to continue to be paid. Mr. Rohde noted, however, there are still a petition for award and a petition to determine the extent of permanent impairment pending. Mr. Rohde’s recommendation was to grant the motion for extension of time due to the Board’s rule which allows the employee 30 days from the date the benefits are suspended to file a petition, or if there is an issue as to the appropriate termination date, 30 days after a final decree on the matter. If the employee is successful in obtaining a permanent impairment rating above 11.8%, the extension request would become moot because he would be entitled to benefits for the duration of his disability. The petitions are now pending before a Hearing Officer. Mr. Rohde suggested he draft an order for the Chair’s signature granting the motion for extension of time, indicating that the material be exchanged within 15 days of a final decree on the pending petitions.
Directors and Staff discussed the procedure for issuing the order, as well as the procedure for granting Staff permission to send out such an order. (Staff noted that if everyone assented, that would be sufficient) Directors all agreed to the drafting of an order for Chair Dionne’s signature and issuance.
General Counsel Rohde reported that the next case with a motion was the Ly Nang Dang v. Barber Foods case, which had previously been scheduled, however the employee’s attorney requested an extension of time due to a death in her family. Before the case could be rescheduled, the employer filed a motion to dismiss the pending petition on the grounds the employee has filed a petition for restoration arguing that the employee is entitled to total incapacity benefits under Section 212. The employee’s attorney did not respond to the motion to dismiss. The petition for restoration was mediated on August 3rd and presumably is on the way to a formal hearing. Mr. Rohde noted that in this case it may be sensible to stay the proceedings on the Section 213(1) benefit extension request until the petition for restoration has been decided by the hearing officer. There is a potential for the Sec. 213(1) petition to be rendered moot if the employee succeeds in persuading the hearing officer that he is totally incapacitated.
Directors and Staff discussed the General Counsel’s recommendation to delay Board action in this matter. Directors all assented to the drafting of an order staying the Board Sec. 213(1) procedures for Chair Dionne’s signature and issuance.
Mr. Rohde noted the final Section 213(1) Request for Extension of Benefits case was Darrell Stewart v. SkyPig, Inc. which required a hearing to be scheduled. Mr. Rohde offered two suggestions for hearing dates/times– following the Board meeting of September 21st or selecting a separate date. He noted the parties have not yet indicated how much time they would require at hearing, but if the hearing were to start following the close of the Board meeting on the 21st, that would allow four or more hours to complete the hearing.
Directors and Staff discussed their preference for scheduling the hearing following a Board Meeting, and that the 21st of September is an acceptable date. There was an inquiry regarding a hardship hearing previously scheduled and the status of the case, which was the Starbird matter, Staff noted that it was concluded in favor of the employer.
Chair Dionne requested the Board take up Agenda Item #2 under New Business first. The Directors consented to the change in order.
Mr. Minkowsky referenced pg. 1, Section I-A regarding Lost Time First Reports, reporting 86.02% were filed within seven days, the highest compliance level in the industry reached to date, nearly 4% higher than the previous quarter.
Referencing Section I-B (Note: the 2nd I-A in the Board’s copy of the report) Payment of Initial Indemnity Benefits, Mr. Minkowsky noted 85.35% were paid within 14 days. This performance marks the third consecutive quarter of timely payments above 85%, nearly 2% higher than the first quarter of 2003, a year ago. The MAE program continues to make significant progress in that area.
Mr. Minkowsky also reported that in Section I-C, (Note: Board’s copy indicated I-B) Memorandum of Payment Filed within 17 days, the compliance is 82.55%, 7% over the benchmark.
Relating to Section I-D (previously I-C) Notice of Controversy, Mr. Minkowsky pointed out this new section and reminded everyone of the Board’s unanimous passage on 6/17/2003 of the motion relating to reporting of NOC numbers. Mr. Minkowsky reported 91.10% of the NOCS, 775 initial indemnity NOCs were filed in the first quarter of 2004, were filed within 0‑17 days, utilizing the same benchmarks and protocols for MOPs. Mr. Minkowsky pointed out the caveats for measurement of NOCs, which exclude: 1. NOCs submitted for reasons of “Jurisdiction” and “Coverage;” 2. NOCs submitted by entities that are not the carrier of record; 3. NOCs filed on “Medical Only” claims; 4. NOCs with subsequent periods of incapacity after a Return to Work Date where a claim for compensation could not be determined by the Board. Additional caveats included: The measurement of the filing of Initial Indemnity Notices of Controversy (NOCs) reflects the timeliness of initial indemnity NOCs; Initial Indemnity Notices of Controversy can be filed for a number of reasons including: Benefit Amount in Dispute, Legal Causation, Coverage, Notice of Injury, Extent of Incapacity, Statute of Limitations, and Jurisdiction; and finally, The number of Initial Indemnity NOCs filed by an insurer, contrasted with the number of Initial MOPs filed by the insurer, may be used as one of many claims administration indicators that result in an insurer being referred for audit for possible violations of the Act. Mr. Minkowsky noted that section references the unreasonableness of a filing.
Directors and Staff discussed the caveats for NOCs and the feasibility of matching the First Reports of Injury with Memorandum of Payments and Notices of Controversy, to arrive at a percentage of NOCs and MOPs to First Reports of Injury, and whether the numbers would be skewed to make them unusable with those four types of NOCs excluded. J.Levesque joined the discussion for clarification on the reasons why certain types of NOCs were excluded – relating to the Jurisdiction issue, under the Jones Act and Longshoreman’s Act, it is difficult to count a NOC for Jurisdiction because we know that the claim is being pursued in another comp setting, it is really not denial of a claim but rather a notice to the Board the claim is being pursued elsewhere. Therefore, it would be important to exclude those from the sample because they are not denials. Under the Coverage caveat, the Board receives numerous NOCs from other insurers – many times a petition will be filed with multiple carriers – NOCs filed by insurers who are not the covering entity for the period of the date of injury are excluded so those additional NOCs do not skew the numbers. NOCs may be filed by anyone at any time; the Board receives NOCs from attorneys or other carriers who are not part of record. It is not appropriate to count a NOC from by a non-covering carrier against the carrier of record. Under the Medical Only issue, if the denial is of a medical only claim, it is not initial indemnity claim, so that caveat follows the Board’s Motion. Item #4 presents an interesting paradigm identified by the NOC Pilot Partners – NOCs with subsequent incapacity dates after a Return to Work Date where a claim for compensation could not be determined by the Board. If the Return to Work Date was under seven days and a NOC was filed, there is no way under the current NOC format the Board can accurately measure the timely filing of when the NOC arrived, because less than seven days have elapsed, there is no mechanism in the Act that compels a NOC to be filed if less than seven days have been filed. What previously had occurred was carriers were saying there were subsequent periods of incapacity that they were NOCing and the NOCs that came in were showing up as if they had been received a year later and the data was not accurate. Because that calculation was not accurate, and there is no way under the form construct for the Board to measure it, the program erred on the side of providing quality data and determined that was not something that could be measured currently. Directors and Staff discussed a scenario where the injured employee goes out of work for four days, returns, and then goes out a month later for 10 days on the same injury, which would place them past the seven-day waiting period and a NOC is filed, and Directors confusion as to why the 2nd NOC cannot be counted as a NOC to the First Report of Injury, not the timely filing of the NOC, to match it to the percentage of NOCs filed on First Reports of Injury, the percentage of MOPs filed on First Reports of Injury, and Staff’s response that the problem that presented was measuring the timeliness of those filings; whether the timeliness was based the seventh day or timeliness speaking to within 14 days. Directors request for the percentages of NOCs versus MOPs, whether timely filed or not, which involved the third part of the Board’s motion, the percent of the initial indemnity claims denied; whether it would be possible to match up First Reports of Injury with the MOPs and NOCs and obtain a percentage, utilizing caveat #4 to add them into the percentage whether timely filed or not. Directors’ observation that utilizing caveat #1, the First Reports of Injury would also be excluded from the percentages. Staff’s response it would be an extremely difficult analysis to complete because NOCs may be filed a year later and still be timely filed; clarification that there were three different issues – forgetting about the timeliness issue for the moment, but what is the percentage of claims for indemnity that are NOCd – addressing what the motion asked for, and how that is measured and where that measurement shows up in the report. S.Minkowky’s response, which he noted had been discussed in the NOC Pilot Project Partners, is that one quarter in itself does not allow a reliable measurement to draw any conclusions from regarding claims adjusting practices. The Monitoring Program plans a composite of all four quarters for the Annual Compliance Report, which should allow a very accurate utilization of the system regarding the number of cases controverted and the number of cases paid, that it may only be possible to accurately and reliably obtain those numbers an annual basis given the current system. Inquiries regarding whether the Program has the actual data now – S.Minkowsky noted on page 7 of the report it indicates that there were a total of 1,249 total Memoranda of Payment filed; but it was noted those numbers only dealt with timeliness, not percentages. Whether NOCs with subsequent incapacity dates can be counted in the totals, and the reasoning the Monitoring Program developed was that they could not be included reliably because of cross-over for claims from year to year or quarter to quarter; Directors clarification that their request relates only to counting the first NOC when the injured employee is entitled to indemnity benefits (not when they go out for an initial period and a NOC is filed, and then later go out again and a NOC is filed, but the first time that the employee would be entitled to indemnity benefits). Staff’s hypothesis if the injury occurs in 2003 but the subsequent period doesn’t happen until 2005, there would be cross-over of data; Directors clarification that the request is for two different numbers – one number that is NOCs timely filed, and their agreement that it would not be able to track the later NOC as to whether it was timely because its date against date of injury would appear as though it was late filed; but it is still a NOC, and if it’s a NOC against a claim and it’s the first NOC against a claim, and a NOC not within one of the categories that rightly have been excluded, it’s a NOC and it ought to be counted. S.Minkowsky noted this was a draft report for the Board’s pleasure and if there was consensus, the Board may develop whatever format they desire. Questions were voiced relating to where the raw data was on the percentage of NOCs in this report – the number of NOCs as opposed to the number of indemnity claims; staff’s response that information was not produced in this report, it was reviewed with the NOC Pilot Partners and Senior Staff, but determined there was not enough data to make that type of analysis. With such a small number of entities and a small amount of filings, it would be difficult to produce the percent of initial indemnity claims on a quarterly basis and it would not be reflective of what is happening in the community; if the program tries to produce those numbers quarterly, it would create another measurement paradigm where measuring NOCs received on claims that were filed in the quarter of the report, because of cross-over concerns, data migration, and data concerns, it was not possible to generate those statistics on a quarterly basis. Programming just now starting to be able to accomplish those analyses on an annual basis; the Chair clarified the requested information would be in the Annual Report, but not in the Quarterly Report. Discussion regarding not relying on First Reports, but comparing NOCs to MOPs; that the Board’s motion does not address percentage of NOCs re: dates of injury, it talks about percentage of NOCs re: initial indemnity claims; a First Report may have been filed two years ago, because it was filed early, it didn’t need to be filed, and the indemnity claim comes up this year, they either file a MOP or a NOC; and the program has that data; Staff again expressed concerns that the dataset is not that clean, that it’s not that easy; Directors questioned whether the number of MOPs and NOCs filed for the first quarter is available as raw numbers; S.Minkowsky pointed out the draft report attachments break down the numbers in the new section regarding NOCs in the same manner as the MOPs (referring to page 9), noting the Board has received on an ongoing basis the MOP information regarding 14-day payments and filing of MOPs, a listing of the number of MOPs filed within that period of time; the next section regarding NOCs (pg. 17) and because of a lack of space on the previous chart, the NOCs filing information is listed separately, but it indicates the total initial indemnity benefits filed, using the first insurer as an example, Acadia Insurance, indicates that the total initial indemnity NOCs filed were 4, all of which were filed within 0-17/14 days, resulting in a 100% compliance; S.Minkowsky pointed out that was the new section, and noted that for each entity the Board is receiving the total number of MOPs and NOCs that are filed in that period of time; Directors noted the information was on two different pages and suggested adding another page for a summary total under MOPs and NOCs. There was discussion regarding whether the total indemnity claims filed, total MOPs and total NOCs can be matched up reliably when those events occur in different quarters, noting the numbers may not total up; There was discussion of “protective” NOCs, even though the seven-day waiting period has not occurred, and then NOCing the claim again later when there is actually an entitlement to indemnity, there is no check off box on the Notice of Controversy form to indicate “protective” NOCs; discussion relating to how the filing entity completes a NOC (whether indemnity is checked off or medical only, that indemnity should not be checked because there is no indemnity claim if the injured employee is out of work less than the seven-day waiting period); how those should be counted; and litigation occurring on cases where NOCs should not have been filed in the first place because the attorney does not want to be litigating the filing date issue down the road; Staff mentioned the benefit of the discussion to identify some practices in the community that may need to be addressed. Directors noted the current motion requires that the data be included in the report even if it is not perfect and the numbers could easily be summarized on a separate page, with a reasonableness existing for the numbers presented with a footnote in the report “many carriers NOC cases where there is no claim pending.” It was noted it is important to note that the filing of unnecessary NOCs drive costs in the system because whenever a NOC is filed, the Board creates a file and assigns the case to a Troubleshooter; discussion whether a NOC being filed should automatically result in Board action. There were assertions that the original purpose of the motion was a measurement that is sort of reflected in the draft quarterly report before them, which is determined at a value, 91.10%; and if the question is not one of timeliness, what was the basis underlying the adoption of a motion compelling this sort of reporting; suggestions that perhaps the Board’s motion should be readdressed and revised. There was discussion that the motion did not address simply the timeliness and clearly directed the Board to report the relative percentage of NOCs, data was already being gathered on timeliness, this was a change adding relative percentage; using Acadia as an example there were 39 payments made for indemnity claims, there were 39 MOPs and 14 NOCs, Directors inquired whether there were 53 claims made, 14 of them NOCd and 39 were paid; Staff noted that there might have been a much larger number of claims where no activity occurred because the claimant returned to work, which was clarified by the caveat; that it would be whichever was filed first, initial MOP or initial NOC, not subsequent periods; Staff’s recommendation to allow them to continue to work on the system, they had high confidence in the numbers presented today on the Quarterly Compliance Report and equal confidence that when the Board is provided with the 2004 Annual Compliance Report in 2005, based on utilization, based on these caveats, there will be high reliability with those numbers as well. It was noted the total of claims filed is easily ascertainable to anyone by flipping the pages, even though they are not side by side, and it would be S.Minkowsky’s recommendation to approve this compliance report and at future meetings look at different formats for future compliance reports. The Staff was amenable to any format suggested with consensus from the Board and the program would note any concerns regarding accomplishing approved format; the bottom line concern that the numbers are as accurate as possible. There was an assertion the Board is collecting data on something that has no statutory issue, there is no limit on the number of NOCs that an employer may file, and responses that the data has extremely valid information potentially available, it may need some tweaking, but the statute does allow the Board to pursue carriers who have unreasonable claims handling practices, and if the Board finds that carrier A files 3 NOCs and 30 MOPs and carrier B files 30 MOPs and 3 NOCs, that doesn’t mean that carrier B is guilty of unreasonable claims handling practices, but it certainly suggests that further inquiry is appropriate which is exactly what the MAE Program’s mandate is; notations to Section 359 of the Act which talks about unreasonableness, and some of the numbers in this report, for example, AIG, on pg. 9, had 14 MOPs filed, and on page 17 there were 90 NOCs filed AIG, which is a concern that should be brought to the Board’s attention and is an issue regarding claims adjusting practices that would suggest a future onsite audit (looking at individual case files by the Audit Program to determine why the filings were made) be conducted to look at more data than one isolated quarter to determine if there are questionable claims practices or unreasonable filings happening; that it would be appropriate for the Board to be looking into an entity controverting 90 cases and only paying 14, with all the other caveats excluded; unnecessary filings straining the Board’s dispute resolution process. The Directors’ agreement that this information should be reported, but presented in a meaningful and accurate way particularly if the Board is utilizing the data as a tool to pursue carriers. S.Minkowsky’s assured the Directors that the numbers in this report are very accurate, that they have been scrubbed, and the program is not drawing conclusions, but looking at those numbers and suggesting that an onsite audit might be appropriate to investigate further. It was noted whether it is statutorily based or Board mandated, there is a Board mandate in the Board’s motion for these figure to be included in the report, conceding the motion does not say whether it be quarterly or annually, but that it happen as soon as possible; the program has the numbers as well as a number of caveats to sanitize the data and clarify whatever components that need to be identified so that people don’t misconstrue the numbers; the data would be a useful tool to identify a situation that may need more review; Directors comment this report was fine as written, but asked for a listing on a separate page (For example, on page 9, using Acadia, there are listed payments made, group total 39, take that category, Acadia, payments paid 39, and on page 17 take Acadia, NOCs filed 14, and on a separate page, place those two lines for all the carriers as a group, and at the bottom of the page total the two lines, the number of payments made versus the number of NOCs filed). Staff will prepare the report in whatever way the Board with a consensus determines. The Chair suggested that the Board move on the Compliance Report today to either accept or reject it and at a subsequent meeting have J.Levesque and S.Minkowsky develop various formats for the report and the Board may then make a decision as to which format it would like. There was discussion regarding because a NOC is filed does not mean that there is a claim, that a percentage of NOCs, perhaps 20%, is filed even though there is no claim, so there may be some NOCs that do not correspond to a claim because there was no claim made, and that one cannot determine from looking at a NOC which category it falls into and the suggestion for some language explaining to the reader that those NOCs exist; discussion that only the initial activity is recorded whether that be a NOC or MOP; concerns whether the data will be misconstrued and notations that the Board’s Directors and Audit Division are about the only ones to use the data, and if it will help the Board Members look at claims adjusting practices, to do a summary, based on the numbers in the Compliance Report, S.Minkowsky sees no reason why they can’t go forward if that’s the pleasure of the Board; Chair’s suggestion that the Board vote on the current Compliance Report and in subsequent Compliance Reports modify the format if the Board is in agreement.
Anthony Monfiletto MOVED TO ACCEPT THE DRAFT 2004 FIRST QUARTER COMPLIANCE REPORT AS WRITTEN; John Cooney seconded. MOTION CARRIES 6-0.
Directors discussed the Board’s benchmark referenced on page 1 of the cover memo of the Quarterly Compliance Report as 80%, and that the entities have been over85% for some period of time; and the Memorandum of Payments filing the benchmark is 75% and compliance is over 82% for a period of time now.
Anthony Monfiletto MOVED TO INCREASE THE BENCHMARKS OF INITIAL INDEMNITY BENEFIT PAYMENTS TO 85%, AND THE MEMORANDUM OF PAYMENTS FILING TO 80%; Rodney Hiltz seconded.
Anthony Monfiletto MOVED TO AMEND HIS MOTION TO INCLUDE NOTICES OF CONTROVERSIES TO THE SAME BENCHMARK AS THE MEMORANDUM OF PAYMENT.
The Chair recommended that at a subsequent meeting Mr. Minkowsky could present recommendations to the Board regarding where the benchmarks should be, allowing time for the Board to have an opportunity to fully digest and discuss the particular issue.
Anthony Monfiletto WITHDREW HIS AMENDED MOTION. Rodney Hiltz withdrew his second. The Chair noted that this item will be placed on a future agenda; Directors requested to review a statistical flow chart showing some statistics to justify changing the benchmarks; Staff’s suggestion that if the benchmarks for NOCs were to be changed that they would require more than a few quarters in order to obtain something that is reliable; Directors clarification the request only relates to timely filing of NOCs, the same as the Memorandum of Payment, S.Minkowsky’s noted that with the EDI process that has been approved by the Board in the filing of MOPs and NOCs timelines over the next two years, the 14 plus 3 will be a moot issue, because everything will be filed electronically, so the Board will be going from the protocols to the rules once the EDI motions are implemented; Chair’s suggestion to schedule it for a meeting in September when the statistical data is available.
Directors and Staff discussed that the only one of those items that had a September 1st deadline was the Budget; Directors noted this motion would link separate Personnel Subcommittee issues (which already had agreed to be heard on September 7th, that the people involved would not be available until then) with the Budget, and their opposition to that; agreement to granting additional time for review of the numbers and setting a special meeting to vote on the Budget; inquiries regarding the results of not approving the Budget by September 1st; the Chair’s informed the Board that both the General Counsel and the Acting Deputy Director of Business Services have advised him that: 1) the law states the Budget must be in by September 1st, and, 2) practically speaking, the Board will not be able to enter the Budget after the 1st because the computers shut down and will reject the Budget after the 1st; some Directors desire to combine some of the issues eliminating the need for three consecutive Board meetings; that postponing issues to a later agenda have been accommodated, but opposition to moving an issue up to an earlier meeting when there has already been an agreement; it was noted that today’s Agenda item was the Budget and if some Directors require more time to review the Budget, that request should be accommodated, still following the law and get the Budget approved on time; discussion whether the Budget was presented in some other format than what Directors had received previously (cost centers) and that it was the second year the Board has received the Budget in this format; Chair’s suggestion that if some Board Members needed time to consider the Budget up until September 1st and the Board can hold a special meeting on Tuesday, August 31st if all members would be available.
Anthony Monfiletto MOVED TO HOLD A SPECIAL BOARD MEETING ON AUGUST 31ST FOR THE PURPOSE OF RESOLVING THE FISCAL YEAR 06/07 WORKERS’ COMPENSATION BOARD BUDGET; Rodney Hiltz seconded.
Some Directors expressed dismay that the request to consolidate meetings was not accommodated, however, others do not have the resources available; the motion on the floor is to hold a Special Meeting to accommodate Directors’ request to have additional time to digest the figures of the Budget prior to it being acted upon.
MOTION CARRIES 4-0-2 (Directors Cooney and Mingo abstained).
Conclusion: A Special Board Meeting will be held on August 31st at 9:30 a.m. All Board Members will receive prior to the meeting data and information that the Budget Subcommittee received this morning.
Rodney Hiltz MOVED TO ADJOURN TODAY’S MEETING; John Cooney seconded. MOTION CARRIES 6-0.
The meeting formally adjourned at 12:18 p.m.
Return to 2004 Board Minutes