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WORKERS' COMPENSATION BOARD
Board of Directors’ Meeting
September 21, 2004

A meeting of the Workers’ Compensation Board of Directors was held on Tuesday, September 21, 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, John Cooney, Rodney Hiltz, Joan Kirkpatrick, Gary Koocher, James Mingo, and Anthony Monfiletto.
ABSENT: None.

MINUTES

Gary Koocher MOVED TO ACCEPT THE MINTUES OF THE SEPTEMBER 7, 2004 MEETING; Joan Kirkpatrick seconded.

Discussion:
Director Monfiletto requested the minutes be amended on page 6 to reflect his statement on the record in the discussion regarding the Hearing Officer appointment of Timothy Collier; Director Hiltz requested the same.

Anthony Monfiletto MOVED TO TABLE THE MOTION UNTIL THE NEXT BOARD MEETING; Joan Kirkpatrick seconded. MOTION PASSES 7-0

Conclusion:
The approval of the September 7, 2004 minutes will be held until the October 19th meeting.

SUBCOMMITTEE REPORTS

1) Personnel & Budget Subcommittees: Chair Dionne noted the Budget Subcommittee report would be taken care of under New Business.

Discussion:
Directors requested that the Personnel Subcommittee start the search for the Assistant General Counsel position.

EXECUTIVE DIRECTOR REPORT

  1. Comp Summit: Executive Director Dionne reminded everyone that Comp Summit was coming up and noted that the Board’s major participation would be the panel on Tuesday morning, and some members of the Board had been assigned to additional panels; if anyone was uncertain as to their assignment, they should contact him. P.Dionne noted that all reservations had been made for the Board Members and Staff.

Discussion:
Directors and Staff discussed which Board Members would be available on Tuesday for the Board’s panel and P.Dionne requested that as many Board Members as possible be in attendance on Tuesday morning.

  1. Budget process: Executive Director Dionne reported that the Budget has been submitted to the Bureau of the Budget as voted upon by the Board. The Governor indicated a couple of weeks ago that he was requesting the various departments meet to discuss the budget process. P.Dionne noted that J. Rohde had attended a meeting on the Agency’s behalf last week with Rebecca Wyke moderating and informed them as to what the guidelines were that the Governor was looking for regarding the budgets. J.Rohde reported essentially what was talked about was the structural gap for the coming biennium, the difference between expected revenues and expected expenditures in the next biennium based on historical increases in personnel services, all other, and an inflation factor. The request is for all agencies to get as close to flat-funding as possible to try to eliminate as much of the structural gap as possible. Mr. Rohde noted that the structural gap, as it stands, does not include the impact, if any, of the Palesky measure passing, that it assumes that the MMA question, which was adopted this past summer, be adopted over five years, the structural gap numbers will change depending on forecasts as to revenue and expenditures, but that it is roughly $800,000,000 at this point for the two-year period.

Discussion:
Directors and Staff discussed since the Board is not a general fund agency, if this request will have an impact on the WCB’s budget because most of the discussion at the meeting was about general fund agencies, there will be a follow-up meeting to be scheduled for all Commissioners to attend and there will be additional guidance provided.

  1. Release 3 - IAIABC: Executive Director Dionne reported that there was a telephonic conference last week between various jurisdictions and carriers as to exactly what elements would be included in Release 3; that there was a push to remove certain elements from Release 3, one of which concerned the Board significantly, unemployment insurance “UI” number; P.Fortier and P.Dionne have had multiple conversations regarding this issue and decided to insist that the UI element remain in Release 3, that if it did not remain, the Board might not participate in the implementation of Release 3 on January 1st. P.Fortier reported that there were four states which wanted to keep the UI and Staff presented their case to keep it because it is a unique identifier of each employer.

Discussion:
Directors and Staff discussed the difference between a State UI number and a Federal employer identification number, and the difficultly being that the Federal EIN might encompass multiple entities; there may be one FEIN for a range of two to 100 UI (individual employers), which would mean that anytime an FEIN came in with multiple UIs, the claims department would need to perform a manual process to try to identify which individual entity it was; the Board currently ties all coverage and claims to the unique employer, and the UI is more specific.

P.Fortier went on to report that during the course of the conversation, all participants presented their business case and there were three to four votes to remove the UI number and everyone else voted to keep it. He went on to say that the original elements that the Board thought were going to be there is what was voted on by the committee and will be the elements in Release 3; the issue is finally settled which works fine for the Board’s needs.

  1. Executive Committee IAIABC: Executive Director Dionne informed the Board that there is an IAIABC Executive Committee on October 9 & 10 in Madison, WI. The cost of the trip is approximately $1500. Mr. Dionne noted the issues to be discussed at the meeting are the EDI Release 3 and a general plan for the Executive Committee for the upcoming year. He noted that he would like the Board’s permission to attend, but it was not imperative that he attend. Any out-of-state travel would require a vote from the Board.

Discussion:
Directors requested a breakdown of the $1500, which would be the airfare, hotel, and meals for two days.

John Cooney MOVED TO AUTHORIZE PAUL DIONNE FOR THE REQUESTED OUT-OF-STATE TRAVEL; James Mingo seconded. MOTION PASSES 6-0-1 (Director Dionne abstained).

GENERAL COUNSEL REPORT

  1. IME Subcommittee: General Counsel Rohde informed the Board that B.Inman will be forwarding to the Subcommittee members a couple of CVs which they may discuss at the Comp Summit in Sugarloaf.
  2. Chapter 5 Medical Fee Schedule Consensus-Based Rulemaking Subcommittee: General Counsel Rohde informed the Directors the Subcommittee meeting is now scheduled for November 16, 2004 at 1:00 p.m. in Augusta, and noted that the Board’s Augusta Regional Public Forum was scheduled for the same day in the afternoon/evening.

Discussion:
Directors and Staff discussed whether all public forums have been cancelled or whether the cancellation was occurring on an individual basis; that the Portland meeting had been moved from an evening to a morning meeting; but the Augusta meeting is still scheduled for late afternoon, with the public forum in the evening; Directors inquiry whether the Board would be agreeable to moving the Augusta Regional meeting to the morning.

Gary Koocher MOVED TO CHANGE THE AUGUSTA REGIONAL MEETING TO A MORNING MEETING AT 9:30 A.M.; John Cooney seconded.

Discussion:
Directors and Staff discussed holding the Business Meeting on the 16th of November at Central Office and inviting the public, rather than going to the Regional Office in Augusta, which is smaller and the Board may have other meetings at Central Office on that day; that the meeting should be held at the Regional Office so the Board Members are at least accessible to the Regional Staff.

Clarification was made that the motion on the table is TO CHANGE THE TIME OF THE AUGUSTA REGIONAL MEETING TO 9:30 A.M. ON THE DAY ORIGINALLY SCHEDULED (11/16/2004), with the Public Forum following.

Cont’d Discussion:
Directors, Staff and Participants discussed whether there would still be time to hold the consensus-based rulemaking Subcommittee at Augusta Central Office in the afternoon at 1:00 p.m.

MOTION CARRIES 7-0.

Conclusion:
The Board will meet on November 16, 2004 at 9:30 a.m. at the Augusta Regional Office, followed by a Public Forum, and the Consensus-Based Rulemaking Subcommittee will meet at the Augusta Central Office at 1:00 p.m. on the 16th.

  1. Section 213(1) Requests for Extension of Benefits Due to Extreme Financial Hardship: General Counsel Rohde reported that the case scheduled for this afternoon (Stewart v. SkyPig) will be continued until the October 19th Board Meeting, following the meeting and Public Forum. He noted that there are underlying petitions pending in the case filed by the employee, which if the employee is successful on the petitions, benefits will not have expired because the employee may be entitled to total incapacity benefits under Section 212 or permanent impairment may be above the applicable level. There is an IME scheduled for October 7th and the parties have agreed that if the Section 312 examination is completed and a report produced, and there is not an issue as to whether the employee is totally incapacitated and whether the PI is above the threshold, then it would be appropriate to go forward with the hardship petition. So the hardship hearing has been rescheduled from this afternoon until October 19th pending the Section 312 exam being completed and a report received.

Discussion:
Directors and Staff clarified that the Section 312 examination must be completed and received by the parties; and although it appears to be a short timeframe to accomplish such, the Employee’s Advocate believes the Sec. 312 doctor will be able to.

Regarding the case of Charles Connor, the Board voted on a motion to continue at the last meeting. The basis for the motion was that there was a provisional order request pending and the employee had requested 15 days beyond that date to submit their information. The Board granted the motion on the theory that if the underlying petitions are granted in that case, which will still go forward to a formal hearing, the petition for hardship may be moot. The Employer filed a motion to reconsider that vote and it may be that they were under the impression that the Board had granted the extension of time to file the information until after the underlying hearings, but it may not be clear to the employer that the hardship hearing itself will not occur until after those Petitions are finally disposed. J.Rohde’s recommendation regarding the motion to reconsider would be to deny it, but clarify that the hardship hearing will not occur until after the underlying petitions are finally disposed of.

Anthony Monfiletto MOVED TO CONCUR WITH THE GENERAL COUNSEL’S RECOMMENDATION (to deny the motion to reconsider with a clarification that the hardship hearing will not occur until after the underlying petitions are disposed of); James Mingo seconded.

Discussion:
Directors and Staff clarified that the Motion is to deny the Motion to Reconsider, and explain that the hearing regarding the Petition for Extension of Benefits will not be scheduled until after the final disposition of the petitions that are currently pending before the Hearing Officer.

MOTION CARRIES 7-0.

  1. Legislation: J.Rohde informed the Board that Legislation would now be scheduled as a regular agenda item. October 19th is the next Board meeting and December 1st is the deadline for submission of Board’s proposed legislation, so if anyone has any suggestions, to get them to him as soon as possible in order for drafts to be prepared for the Board’s review.

OLD BUSINESS

  1. EDI Mandate re: non-compliance & waiver requests: After P.Dionne reminded the Board that this discussion was initiated at the last meeting and they had decided to continue the discussion at this meeting; he requested clarification from P.Fortier as to whether, if a penalty letter is issued, will it go to the employer or the insurer? P.Fortier reported there was discussion regarding the process and what happens and how the fines are assessed, it was noted that if filings occur via paper after the EDI implementation deadline and the filing entity has not requested a waiver, or receipt of the filing is after the waiver period, a $100 penalty will be assessed to whichever entity was supposed to submit the form; if the carrier has a relationship with the employer to submit their First Reports, then the carrier would be responsible. J.Rohde clarified that it will be essentially the same process the Board is using now, in the sense that when a First Report comes in late and the employer had timely notified the insurer and the insurer files late, the insurer would be responsible for the penalty; so if the insurance company is filing via paper and does not have an approved waiver, then those First Reports will be considered not filed in accordance with the Board’s rule and would result in a $100 penalty.

Discussion:
Directors, Staff, and Participants discussed whether the Board has a way to determine the relationship the employer has with their insurance carrier; that if the insurer and the employer come to an agreement for the insurer to submit First Reports of Injury, the Board has no signed documentation representing that agreement, so when a penalty letter is sent, it should be sent to the employer; the Board currently sends penalty letters to both the employer and insurer because the Board knows who the carrier is; in determining the penalty the parties may inform the Abuse Unit or the AIU investigates to determine which entity is responsible for the penalty; a scenario where the employer had an agreement with the insurer to submit the First Report, but the employer was consistently giving late notice to the insurer, the insurer got tired of paying the penalty and told the employer to clean up their act or pay the penalties; those transactions have nothing to do with the Board as far as the law goes, it does not matter to the Board which entity pays the fine as long as it is paid; if the parties disagree which entity is responsible, currently the AIU does make the call and determines which one is responsible; the Board should not be involved in determining that the insurer has to pay a $100 fine, the law is not written that way, the Board cannot change the law, and the Abuse Unit should not be making that determination, if the filing is late, it is late, and according to the statute the employer is supposed to file and therefore would be the one not timely filing, the issue should be worked out between the two entities as to which will be paying the fine; Directors’ confusion regarding the fining of the insurer rather than the employer; the definition of the word employer in the Act means employer or insurer depending on the context, and the Abuse Unit has been fining insurers in situations where the AIU has determined, or the insurer has admitted, responsibility; the Abuse Unit should be able to determine which insurer has had the practice of filing First Reports for their employers based on past practice; and whether an insurer’s argument that it is not their responsibility to file the First Reports could be used within the context of a particular penalty, thus far the Abuse Unit has not encountered such an assertion; if an insurer does not want to file electronically, they are not granted a waiver, and do not file First Reports of Injury even if the employers are calling them every day making reports, which entity would be fined then, in that situation the AIU would assess a penalty against the insurer; the Board considers the employer/insurer as one entity regardless of the agreement between the employer and insurer; clarification that the definition of “employer” in the statute is “if the employer is insured, ‘employer’ includes the insurer, self-insurer or group self-insurer unless the contrary intent is apparent from the context or is inconsistent with the purposes of this Act,” so the insurer is liable unless the insurer can prove it wasn’t their fault; the Abuse Unit is acting in a manner consistent with the statute; the discussion clarifying that the authority is there for the AIU to make the determination of responsibility and the community agrees with how the Abuse Unit has been applying the penalties, an insurer cannot file reports without receiving notice, and if the employer reports the injury to the insurer and the insurer fails to file the First Report timely and acknowledges its failure to do so, the insurer would be responsible for the assessed penalty.

P.Fortier noted that he had prepared a draft request for waiver questions that the Directors had requested be developed; that it would be up to the insurer, self-insurer, or claims administrator to file the request for waiver; thus far no employers that are not self-insured are filing paper reports, so whoever is currently filing would fill out the waiver request and then Staff would make a recommendation to the Board which would then grant or deny the request for a waiver.

Cont’d discussion:
Directors and Staff discussed the difference between IAIABC Release 3 and the State’s Proprietary system, whether entities outside of the State can use the Proprietary system, filing entities may use either, some insurance companies, for example, Liberty, will probably want to use the IAIABC system because the same format can be sent to Connecticut, Rhode Island, New York, etc., and they would only have to program their system one way; whereas with the Proprietary method they would have to program it the way the Board has it set up and then program or set up differently for other States, the Proprietary system may include the same elements as other States or the IAIABC, but they may be in a different structure; the Board’s Proprietary system does not match character for character with IAIABC’s which has a lot more elements because we are just concerned about the information on the First Report form; whereas there are probably twice as many elements in the IAIABC’s format because other States have other elements that they capture that Maine does not; each filing entity will choose which system works best for them; if an insurer is only doing business in the State of Maine, it is most likely they will choose to use the Proprietary system which is less cumbersome; questions related to the need for bringing each waiver request to the Board’s attention and whether the Board would actually have to become involved in each request; the Board would have to consider each request, they may not delegate the responsibility, and then vote whether to grant the extension or not and for how long an extension would be granted, an order would be issued noting that the decision was final agency action; whether a grace period would be appropriate so that the Board would not have to deal with numerous requests; the rule was promulgated over six months ago and entities have already had a six month notice; trying to approximate the volume of waiver requests that might be received, which Staff anticipates that since our largest provider is already electronic, and at least 50% of filings are electronic, which leaves approximately 30% which will be utilizing the IAIABC system, most of the larger players are already using it; the outside carriers which will utilize IAIABC are most likely the entities which the Board will receive waivers from, and of those Staff estimates approximately 30 requests for waivers will be filed; Staff will receive, process, and review for legitimate concerns, the waivers and bring them to the Board with a recommendation that could be voted upon; previous grace periods have related to situations where there was a change of culture, a change in how the Board was doing things and there needed to be a community notification process, the best way to get the word out that there was an infraction of whatever the Board was penalizing, late filed First Reports or Proof of Coverage, was to say that as of this date if this happens in the future, this will be a fine, which gave the Board a chance to notify the entity that there was to be a change in culture; however, with EDI some of these players have been notified for well over three years that this change was coming and they had been requested to start implementing the changes necessary, some entities have not done it responding that they would do it when it became a priority; the Board built-in the ability to have a grace period if one were requested and approved depending on the circumstances of that particular entity; there was a mass mailing in June notifying the community of the rule, the deadlines, and what was required to be in place, so there has already been a six month “grace period; most entities have know about it for years, it’s not a new concept; when the Board was promulgating the rule, the lobbyists familiar with the concept of EDI were asking P.Fortier last year when it would be implemented; that giving a blanket grace period would defeat the Board’s purpose; Directors’ notation that requests for waivers would need to be received by the Board before the 21st of December since that is the last Board meeting of the year before the January 1st deadline; Staff will send out another mailing around the beginning of October notifying the community of the rule, the deadline, and the Board’s website’s link so that if they felt they would be unable to comply for any reason, the waiver form and process may be completed, and if these requirements are not met, there will be a $100 penalty per First Report received non-electronically; questions regarding the current rate of 50% or better of receiving First Reports electronically, and are all First Reports received 100% correct, are some accepted with minor errors that will not be accepted after the 1st of the year, would filings get rejected for mistakes and then be considered late and be fined, or are those types of situations handled differently now than they will be with commencement of EDI; the same process utilized now will be the process utilized after implementation; the process in the State of Maine is different than a lot of other States because other States have more mandatory elements, Maine has made a decision to have very few mandatory elements, but more expected elements; what would happen if expected elements are missing is that the report would be shipped back with a notation that there was an error, but it was still an accepted filing, because the Board’s primary concern is getting the First Report in and commencing the process, so there are very few requirements, filing entities will receive error reports, but Staff does not plan to process these any differently after the first of the year than they have been doing for the past seven years; so if the basic mandatory information is there, if a legitimate attempt to file the First Report was made, it will not be rejected, the filing entity will just receive a notice that informs them of the problems/errors and asks for correction.

Directors thanked Mr. Fortier for his input and clarification.

Gary Koocher MOVED TO ACCEPT THE PROPOSED WAIVER REQUEST FORM; John Cooney seconded. MOTION CARRIES 7-0.

  1. Deputy Director of Business Services: After Chair Dionne noted the Budget Subcommittee met regarding the Deputy Director of Business Services position, Director Cooney reported the Budget Subcommittee met this morning to discuss the Deputy Director of Business Services position, the Subcommittee determined and is recommending opening and expanding the search to include two additional candidates and the expanded search will invite the two internal candidates, as well as the two external candidates who are being strongly considered for the position, to interview with the Budget Subcommittee; after which the Subcommittee will be in a position to make a recommendation.

Discussion:
Directors and Staff discussed that the Budget Subcommittee will be doing the additional interviews, and it was requested that the Personnel Officer notify the two candidates who have already been interviewed that the search has been expanded so that they will be aware of their status in the process.

Conclusion:
Directors agreed that the expanded interviews will be scheduled and the two candidates already interviewed will be notified.

NEW BUSINESS

  1. Comp Summit: Chair Dionne reported that this item had been covered in the Executive Director’s Report, but added that there are approximately 18 Board Members and Staff attending and participating; excluding Board Members approximately 12 employees who mostly are participating on panels, however a couple of individuals are being sent for educational opportunities.

Discussion:
Directors and Staff discussed the panel composition regarding the Board’s new structure or whether that was now Tuesday’s panel; Chair Dionne noted that he would clarify that information with Bud Bernstein of Law Publishers and inform the Board Members; P.Dionne also noted that in the pamphlet received from Law Publishers, the participants of each panel were not listed, but he was sure Bud had a worksheet which he could obtain a copy of and notify the Board Members.

  1. Hearing Officer reappointments: After Chair Dionne noted there are four hearing officers up for reappointment, he offered to give the Board a timetable regarding the reappointment process; he reported that he was presently working on the performance evaluations which should be completed by the first of October, and once they are signed, he will then forward the performance evaluations to the Personnel Subcommittee for review. He suggested the Personnel Subcommittee should meet prior to the October 19th Board Meeting and hopefully will be able to have recommendations for the Board following the Subcommittee meeting.

Discussion:
Directors and Staff discussed the performance evaluation format and whether the element of Law Court reversals will be included and the Executive Director’s thoughts regarding that; P.Dionne’s preference was to do the performance evaluations based on the SOPs established by the Board, and that when the Personnel Subcommittee meets on the 19th of October, the Law Court information could be made available; and when the performance evaluations are sent to the Board Members, the Law Court information could be included; Board Members requested that this information be disseminated to all Board Members, not just the Subcommittee members; the four hearing officers up for reappointment are G.Goodnough, S.Jerome, G.Greene, and T.Pelletier; R.Hiltz’ request to use the criteria in place at the time of the evaluation for review, and if the Board would like to change the performance criteria, then it would be appropriate to make a motion to do so, that he, as part of the Personnel Subcommittee, does not want to take in for consideration information outside of the established criteria, so his expectation would be only receiving information that is within the current performance criteria; discussion regarding the relevance of cases overturned by the Law Court because the Law Court is free to pick and choose the cases which they accept, there are a lot of issues referred that the Law Court never takes under consideration, and whether those numbers really reflect on a hearing officer’s performance; whether a particular criteria should be included should come within the discussion of a presently pending motion (which there is not currently on the table) relative to changes in the criteria, otherwise, the discussion is out of order; one distinction is if any of the Board Members request specific information, he or she is entitled to receipt of the requested information, whether the information is used in determining an individual’s performance would be another issue; the Board Members currently receive Law Court information regularly as decisions reach the Law Court, the request for a summary of all the hearing officers at the end of every year regardless of personnel issues, that it might be interesting information to receive, and the Board is entitled to have access to such information; the timing is such that it may be appropriate to consider including Law Court statistics, not necessarily to use in evaluating the current people up for reappointment, but to have an initial discussion about it and to have discussions regarding the peer review component of hearing officer evaluations in the near future; the appropriate forum would be to make a motion and then engage in the process of the discussion; a request that the Subcommittee work on these topics and at a meeting in the near future the evaluation criteria be further discussed as an agenda item; clarification that the concern is the new criteria not be applied to the current performance evaluations underway, and for future evaluations engage in a debate of the criteria and make a determination then.

ADJOURNMENT

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

The meeting formally adjourned at 11:10 a.m.


Return to 2004 Board Minutes