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WORKERS' COMPENSATION BOARD
Board of Directors’ Meeting
September 7, 2004

A meeting of the Workers’ Compensation Board of Directors was held on Tuesday, September 7, 2004 at the Board's Central Office in Augusta, Maine (AMHI Complex, Deering Building, Rm. 170). Chair Dionne called the meeting to order at 10:17 a.m.

ROLL CALL

PRESENT: Paul Dionne, Rodney Hiltz, James Mingo, Joan Kirkpatrick, Gary Koocher, John Cooney (participated partially in person and the remainder via telephone), and Anthony Monfiletto (participated via telephone).
ABSENT: None.

MINUTES

Gary Koocher MOVED TO APPROVE THE AUGUST 24, 2004 MINUTES; Joan Kirkpatrick seconded. MOTION CARRIES 7-0.

Gary Koocher MOVED TO APPROVE THE AUGUST 31, 2004 MINUTES; Joan Kirkpatrick seconded. MOTION CARRIES 7-0.

SUBCOMMITTEE REPORTS

  1. Personnel & Budget Subcommittees: Chair Dionne noted that the Board would deal with the Subcommittee reports later in the agenda because there were items scheduled for today in which the Personnel Subcommittee would deal with one and the Budget Subcommittee would deal with the other.

EXECUTIVE DIRECTOR REPORT

  1. Auditor II position: After noting that the Executive Director’s report should be fairly light because of last week’s meeting, P.Dionne announced that Kimberlee Barrieres has accepted the Auditor II position, commencing employment on September 20th.
  2. Leave of Absence: Executive Director Dionne advised the Board that R.Berube’s surgery was completed and she is recovering well. Her anticipated return to work is in approximately 6 weeks.
  3. Hearing Officer meeting: Executive Director Dionne noted there was a hearing officer meeting last Friday and a variety of issues were discussed, one of which was the reappointment of four hearing officers this fall. P.Dionne will get the evaluations ready by the end of September, review them with the Personnel Subcommittee, and the Subcommittee should be ready to make recommendations in October.

Discussion:
Directors and Staff discussed the review process for Hearing Officers seeking reappointment and whether each individual Hearing Officer or the entire group will be considered at once; that they would be presented to the Board individually; the Hearing Officers’ whose terms are expiring at the end of 2004 are G.Greene, G.Goodnough, S.Jerome, and T. Pelletier.

GENERAL COUNSEL REPORT

  1. Section 213(1) Hardship Cases: General Counsel Rohde reminded Directors that after the next meeting on the 21st of September, the Stewart v. SkyPig case is scheduled to start at 12:30 p.m.
  2. Chapter 5 Consensus-Based Rulemaking Subcommittee: General Counsel Rohde informed the Directors that this afternoon’s meeting has been postponed and Staff is currently trying to pick another acceptable date.

Discussion:
Directors and Staff discussed the 21st of September not being an option because the hardship hearing is already scheduled, and that there is no meeting scheduled on October 5th due to the Comp Summit conference, and that the meeting of October 19th is scheduled in Portland in the afternoon because of the public forum that is being held; holding the Consensus-Based Rulemaking meeting in Augusta, since there are a number of participants that will be coming from the northern part of the State, that it would be difficult to hold the Subcommittee meeting in the morning in Augusta and then hold the public forum in Portland, or the option of picking a non-Board meeting date in order not to delay the process much longer; that there had been discussion at a recent meeting that the public forum in Lewiston had been cancelled for a number of reasons and the Board had not yet made a decision whether to hold the public forums in the evening or during the day; the public forums had a pretty good attendance in Portland during the day previously, the possibility of rescheduling the Portland meeting to morning with a forum following the regular meeting, or to hold the meeting/forum as it is currently scheduled late afternoon and evening; that if there is generally a good attendance during the day in Portland, Directors’ preference to hold the meeting in the morning rather than having to drive at night, if there is a realistic expectation of a higher attendance at night, it would be worth trying once; thus far public forums have not been a good utilization of time and resources, perhaps there are only one or two people who attend, and frequently the same people; the possibility of not scheduling public forums next year; some Directors are not available in the afternoon on October 19th; there was no attendance at the Caribou evening public forum, and whether the same result would happen in Portland; Directors’ preference for rescheduling the meeting to the morning, followed by a public forum.

Chair Dionne called for a vote to reschedule the Board’s October 19th meeting/public forum from the evening to the morning.

MOTION CARRIES 7-0.

Conclusion: The Board will meet on October 19, 2004 at 9:30 a.m. in Portland, followed by a Public Forum.

Cont’d Discussion:
Directors, Staff and Participants continued discussion regarding scheduling the Consensus-Based Rulemaking Subcommittee meeting, that it should be held in Augusta because many of the participants are from Northern Maine, it would probably be too much to hold the Consensus-Based group on the same day as the Board meeting and Public Forum; if there is a good turnout at the forum, it might be difficult to gauge what time participants would be able to get back to Augusta for the Consensus-Based meeting; perhaps scheduling the Consensus-Based group for after one of the Board meetings in November, J.Rohde will work on scheduling dates; and there are a couple of CVs that B.Inman would like to provide to the IME Subcommittee and perhaps she could send the members copies and discuss them at the Comp Summit.

NEW BUSINESS

Chair Dionne requested the Board take up New Business first.

  1. EDI Mandate re: non-compliance: P.Dionne introduced P.Fortier to discuss with the Board action to be taken if there is non-compliance with the EDI mandate; P.Fortier reminded the Board that 01/01/2005 is the scheduled date for filing First Reports electronically; all the information is on the website for the proprietary system and he is having discussions with IAIABC regarding some changes the carriers would like to make to Release III, which should not have a major impact on the Board’s EDI process; as of 01/01/2005 the Board has received one waiver/extension request from a carrier, who will be utilizing the IAIABC’s technology; Staff’s recommendation to develop a set of questions to apply to each request to determine whether it should be approved and for how long; and what will happen as of 01/01/2005 if an entity does not have a waiver for an extension and they do not submit First Reports electronically; there are no rules nor penalties currently in place; (J.Rohde’s clarification that a waiver may be granted by a majority vote of the Board if complying would result in undue hardship to the entity requesting the waiver, undue hardship means significant difficulty or expense);

Discussion:
Directors, Staff and Participants discussed that P.Fortier would be in the best position to develop the questions; the next issue is what to do on 01/01/2005 if an entity files via paper; the rules state that as of January 1st, 2005, absent a waiver, all First Reports of Injury shall be filed with the Board by EDI; if an entity filed via paper, it would be considered not filed; there should be a mechanism to get the dispute resolution process underway if a paper filing is received; if a non-EDI filing is received, it is considered late until it is filed via EDI, because that is the only way that the Board has approved to accept First Reports; upon receipt of a paper filing from an entity without a waiver, the Board can send out a letter to the filing entity indicating that the Board has not received an official filing of a First Report, and when the filing is received, it would be considered late and a $100 penalty would be assessed per Report; if the Board utilizes the paper First Report to start a dispute resolution process with the “not filed First Report,” there is still constructive use of the First Report; if only a First Report is filed, there may be no dispute resolution process, sometimes a Petition and a First Report will be filed by the Employee when one has not been filed by the Employer; the First Report has not been “officially” filed because the Board’s rule defines “filed” to mean sent in by EDI; what the standard is that must be met in order to be granted a waiver; (J.Rohde’s clarification that the rule states “significant difficulty or expense.”); P.Fortier will develop some questions for entities requesting an extension to answer; which entity is responsible for filing the First Reports – the insurer or the employer; the first extension request has been from an insurance company; Directors’ contention it is not the insurance company’s responsibility, it is the individual employer’s responsibility; insurance companies file the majority of the First Reports, and if they are going to continue to file them, they will have to be filed electronically; the Statute requires employers, not insurers, to file First Reports of Injury from the employer, so if an insurance company has taken that responsibility on for their employers, any requests from an insurance company should be automatically rejected because it is not their responsibility; the Board does occasionally hold insurers responsible for the late filing of a First Report, under the current system, when the First Report comes in, a complaint letter is sent to the employer and insurer, then it is determined which entity is responsible for the First Report being late, there are cases where the employer notified their insurer the very day the injury happened, the insurance company had the information and didn’t file the First Report timely, then the insurer would be the entity assessed the $100 penalty; it does not matter to the Board which entity pays the fine; discussion with Staff regarding how many First Reports are filed by insurers; MEMIC, being one of the largest carriers in the State, files, on behalf of their employers, all of the First Reports; many employers, particularly small businesses, do not have the systems in place to comply with the EDI mandate; it can’t be both ways, it should not have an adverse impact on small employers; part of the success rate of the filings is that businesses and insurers work together to ensure the First Reports are timely filed; if past practice is changed to require employers to be “responsible” for filing all the EDI First Reports, there is going to be considerable expense passed on to the business community, and there should be a plan developed quickly to notify all the businesses in the State of Maine that they are now responsible and they risk fines and penalties if they don’t file the First Report immediately electronically; the earlier debate regarding who was responsible for filing First Reports and developing protocols for the MAE program to do the monitoring of the system; the discussion in the EDI group that insurers should not be responsible for the filing of First Reports and it was determined that employers were, are, and will be responsible, until/unless the Board changes its policy, under the law for filing First Reports; however, under the terms of some insurance policies, that responsibility is shifted to the insurer, which is almost universally done by carriers; the burden to file a First Report is the employer’s, but he shifts that burden to the insurance carrier under the insurance contract; practically speaking the Board has accepted all filings by insurance carriers for a number of years; the analogy of preparation of a tax return, if you pay someone to prepare your return, and there is a mistake on the return, even if the accountant made the mistake, the taxpayer is liable, who would then look to his accountant for reimbursement; if the Board allows the insurers to request a waiver because in fact they do file all of the First Reports, then it would be easier to receive one request rather than, for example, in MEMIC’s case, thousands; if the Board receives requests from all the insurers in the State, then there will be no EDI; any insurance company asking for waiver should automatically be denied because it’s an insurance company, but they may continue to submit filings on behalf of their employers; the insurance company should be able to word the request in such a way that they are requesting a waiver “on behalf of their insureds” and not have to list each individual insured business; occasionally there are uninsured employers, which not only don’t have comp coverage, but will have no way to file electronically, there should be a way to accept some paper filings under some circumstances; the Board has an obligation to notify the employers in the State that they will now liable for filing electronically and may be assessed a $100 fine; there may be a small store which hasn’t had a claim in 20 years and will not be able to file electronically, nor even know how, and it’s not fair that they be assessed a $100 penalty for something that they don’t know how to do, and are not set up to do; the criteria developed to grant waivers will not automatically grant waivers, there will be standards to be met; if the Board is not ready, then waivers must be issued; the majority of claims are filed by the insurance company or claim administrator; and the Board does receive paper First Reports from employees or troubleshooters that the employer never filed, which is a piece that was not considered when the rule was developed, because employees will not have a means to file electronically; it’s easier for the Board to look at patterns and trends regarding compliance issues if claims are filed electronically; if the employer notifies the insurance company late, that will be reflected on the First Report, and the employer will pay the $100 penalty, if the employer notifies the insurance company timely, but the insurance company files the First Report late, then the insurer pays the penalty; that has been in effect since approximately 1997 and has been working smoothly; Staff anticipate the same when moving to filing MOPs and NOCs electronically; whether IAIABC’s Release III will be ready to go online in January and will only relate to approximately 25% of First Reports filed with the Board; 75% utilize Maine’s Proprietary system which is ready; to consider a grace period in which fines are waived and paper filings may be initially accepted; (P.Dionne clarified that Staff’s request today was to develop some direction regarding the criteria for granting waivers, and Staff will prepare a draft set of questions for discussion); the MAE Program has adopted a phase-in approach in the past, sending notices to the effect that if the Board were assessing penalties, the penalty would have been $100, however for the period of time determined by the Board penalties have been waived; this kind of phase in gets the word out and maintains good relations with the community; a mass mailing was made in June notifying the community that this rule was effective 01/01/2005; if the entity has chosen not to commence compliance between June and January, then they are in non-compliance; some companies as soon as they received the notice, contacted the Board and proceeded to put the system into place; the majority of the community has been put on notice years ago that EDI was coming, and that they have received more than enough notice; there are 25% percent of the community that is dependent upon a process that doesn’t yet exist (IAIABC’s Release III); until the software piece is firmed up, the timeframe for compliance can’t start running; that the waiver procedure is for those entities who are going to be utilizing the IAIABC program and the waiver would be contingent on when Release III was available and how long the entities would realistically need for testing it after it was up and running to work the bugs out; if entities are using the Proprietary system, which is ready, they should be onboard and ready to go on 01/01/2005, and those entities should be penalized as of 01/01/2005 if they are non-compliant; continuing conversations with IAIABC regarding data elements in Release III (carriers’ request to remove a data element that the Board uses as a key identifier (the UIAN), which is why there is a waiver procedure described in the rules because the Board was aware Release III would be an issue and it is not yet known exactly what components will be in Release III, however it is anticipated that all of the key elements the Board requires will be in the final version of Release III; the community that was notified regarding the new EDI requirements were self-administered, carriers, and claims administrators, the 60,000 business owners in the State have not been individually notified; the understanding that the way the fines have been applied thus far is if there is a late First Report, and the insurer is approached regarding the penalty and maintains that the insured did not inform them on a timely basis, the penalty for late filed First Report would go to the employer; the assumption that with the EDI process, the penalty system would work the same way; the employers’ risk of penalty would not change; whether the individual employers or their insurers have to request a waiver because the insurer is going to use Release III and all of the employers have no idea this is coming down the road; if a current insurer is filing First Reports on behalf of their clients and requests a wavier based on Release III, if they attach a listing of their insureds requesting the waiver on their behalf, that should be sufficient; EDI has been running for the last seven years, Release III was approved and voted on by the Board last May; some of the questions on the waiver request form should be which standard is the entity going to utilize, Proprietary or Release III; second question would be are you already doing Release III with other States, and if they are already using it in other States, there’s no reason why they can’t utilize it with the Maine Board; and have you been doing Release I, Release III is an add-on for Release I, so it should not take as much time to implement; the only request received so far was for an 8-month period of time, with no justification; (Chair’s suggestion that P.Fortier develop a waiver request form by the Board’s next meeting on September 21st for discussion regarding reasonable standards for granting waiver/extension requests); the issue that Staff is looking for direction on is what happens January 1st, not accepting First Reports unless they are filed electronically; if entities are not in Maine administrating their claims, and they need to use IAIABC Release III which may not be available, then it would make sense to grant a waiver; on September 21st discussing the proposed questions for a waiver/extension request in order to analyze the requests and approve them only when necessary and the Board should be involved in determining the length of the extension; (Chair’s direction that P.Fortier develop a waiver form by the Board’s next meeting on September 21st for discussion regarding reasonable standards for granting requests and at that time discuss whether there will be a grace period).

Directors thanked Mr. Fortier for his presentation.

OLD BUSINESS

  1. Hearing Officer Appointments: After Chair Dionne noted that old business was next on the Agenda,
    Gary Koocher MOVED PURSUANT TO 1 M.R.S.A. § 405(6) TO ENTER EXECUTIVE SESSION TO DISCUSS THE APPOINTMENT OF HEARING OFFICERS IN PORTLAND AND THE APPOINTMENT OF THE DEPUTY DIRECTOR OF BUSINESS SERVICES; Joan Kirkpatrick seconded. MOTION CARRIES 7-0.

(Executive Session commenced at 11:10 a.m.; returned to public session at 12:22 p.m.)
After Chair Dionne noted the meeting was back in public session, Directors requested a caucus.
Directors caucused at 12:23 p.m.; returned to the meeting at 1:30 p.m.
(Director Cooney now participating via telephone.)

After Chair Dionne noted the meeting was back in public session and the issue on the table was Hearing Officer appointments,

Rodney Hiltz MOVED TO HIRE MIKE STOVALL AS A PERMANENT HEARING OFFICER BEGINNING JANUARY 1, 2005 FOR A TERM OF THREE YEARS; Gary Koocher seconded. MOTION CARRIES 7-0.

Gary Koocher MOVED TO APPOINT TIMOTHY COLLIER AS A HEARING OFFICER FOR A TERM OF THREE YEARS BEGINNING JANUARY 1, 2005 and TO HAVE RICHARD DUNN’S TEMPORARY TERM CONTINUE THROUGH DECEMBER 31, 2004 WITH NO NEW CASES BEING ASSIGNED AND NO MATTERS THAT CAN NOT BE CONCLUDED BEFORE DECEMBER 31, 2004 BEING ASSIGNED; James Mingo seconded.

Discussion:
Director Monfiletto requested his statement be on the record “I am very disappointed in the nomination. I feel that you as the Chairman and Executive Director made a lot of public statements during previous Workers’ Compensation Board Meetings to the effect that we have two good hearing officers that are doing the jobs now and the fact that to train a new hearing officer or to transfer caseloads would in fact delay the process and put the hearing officers in Portland in a position of having a backlog again. And because of that, I find this motion confusing and disappointing;” Director Hiltz requested his statement be on the record “I think we need to have further investigation into why the Board would want to remove an outstanding employee such as Dick Dunn from a position that, to my knowledge, not only have we received no complaints, but he has produced for us and the Portland Office is continuing at this point to act in an efficient and professional manner. So I respect the work that Hearing Officer Dunn has done as a temporary hearing officer and I question as to why we would want to remove him from that position.”

MOTION CARRIES 4-3. (Directors Hiltz, Kirkpatrick, and Monfiletto opposed.)

Further Discussion: General Counsel Rohde requested clarification that Mike Stovall will continue as a Temporary Hearing Officer until 12/31/2004; Directors all agreed.

  1. Deputy Director of Business Services Appointments: Chair Dionne inquired if there was a motion for delaying action for this item.

Joan Kirkpatrick MOVED TO DELAY ACTION ON THE DEPUTY DIRECTOR OF BUSINESS SERVICES APPOINTMENT TO THE NEXT MEETING; James Mingo seconded. MOTION CARRIES 6-1. (Director Cooney opposed.)

ADJOURNMENT

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

The meeting formally adjourned at 1:36 p.m.


Return to 2004 Board Minutes