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WORKERS' COMPENSATION BOARD
Board of Directors’ Meeting
October 19, 2004

A meeting of the Workers’ Compensation Board of Directors was held on Tuesday, October 19, 2004 at the Board's Portland Regional Office, 62 Elm St, Portland Maine. Chair Dionne called the meeting to order at 10:05 a.m.

ROLL CALL

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

MINUTES

Anthony Monfiletto MOVED TO APPROVE THE MINUTES OF THE SEPTEMBER 7, 2004 MEETING, AS WRITTEN; Gary Koocher seconded. MOTION PASSES 7-0.

Joan Kirkpatrick MOVED TO ACCEPT THE MINUTES OF THE SEPTEMBER 21, 2004 MEETING; Anthony Monfiletto seconded. MOTION PASSES 7-0.

SUBCOMMITTEE REPORTS

  1. Personnel Subcommittee: Director Koocher reported that the Personnel Subcommittee discussed hearing officer reappointments and other issues concerning future hearing officer evaluations.

Anthony Monfiletto MOVED TO REAPPOINT HEARING OFFICER GLEN GOODNOUGH FOR A SEVEN-YEAR TERM BEGINNING JANUARY 1, 2005 AND ENDING DECEMBER 31, 2011; Gary Koocher seconded. MOTION PASSES 7-0.

Anthony Monfiletto MOVED TO REAPPOINT HEARING OFFICER GARRY GREENE FOR A SEVEN-YEAR TERM BEGINNING JANUARY 1, 2005 AND ENDING DECEMBER 31, 2011; John Cooney seconded. MOTION PASSES 7-0.

Anthony Monfiletto MOVED TO REAPPOINT HEARING OFFICER SUE JEROME FOR A SEVEN-YEAR TERM BEGINNING JANUARY 1, 2005 AND ENDING DECEMBER 31, 2011; Gary Koocher seconded. MOTION PASSES 7-0.

Anthony Monfiletto MOVED TO REAPPOINT HEARING OFFICER THOMAS PELLETIER FOR A SEVEN-YEAR TERM BEGINNING JANUARY 1, 2005 AND ENDING DECEMBER 31, 2011; Rodney Hiltz seconded. MOTION PASSES 7-0.

Discussion:
Director Koocher requested his statement be recorded, and mentioned that “the recommendation which is coming out of the Personnel Subcommittee is that for subsequent evaluations, after this slate of candidates, that the Board consider judicial review, Law Court cases, and recommendations from the hearing officers themselves for future evaluations, and that going forward look to staggering the terms so that there are not four hearing officers whose terms all expire at the same time; and that there seems to be a consensus from the Personnel Subcommittee to take these items under advisement going forward.”
Directors and Staff noted that the hearing officers would be included in the criteria development process and have recommendations for the Board at future meetings, that judicial review would need to be independent of the Board as it had not been in the past; at the last Personnel Subcommittee meeting when Director Monfiletto was filling in for Director Hiltz and Director Monfiletto believing that since he would not be with the Board after February that the Directors remaining on the Board should be the ones to write the criteria and be more involved; and although some Board Members may not be on the Board after January, it is not necessary to wait until February to begin this process; the agreement that the new criteria would not be used for evaluating the hearing officers whose terms expire this year; and the Chair’s commendation to the Board (Chair Dionne noted the process worked well for the hearing officers reappointed and remarked there is no doubt that they are deserving of reappointment, they have performed well and have received good performance evaluations, and the hearing officers make up a big part of the formal hearing process, and noted his desire to get the formal hearing process back to 2002 levels since the numbers have slipped during the past two years because of the failure to reappoint hearing officers. Mr. Dionne stated the Board is now in a position to move forward and get hearing officer decisions done in a more timely manner and reach the levels that were achieved in 2002).
  1. Budget Subcommittee: Director Cooney reported that the Budget Subcommittee met and worked on the hiring of the Deputy Director of Business Services position; the Subcommittee has conducted several interviews of several candidates over the past couple of months and today agreed upon a final candidate to recommend to the Board for that position.

John Cooney MOVED TO EXTEND AN OFFER OF EMPLOYMENT TO DICK DUNN TO BE THE NEXT DEPUTY DIRECTOR OF BUSINESS SERVICES FOR THE WORKERS’ COMPENSATION BOARD; Joan Kirkpatrick seconded. MOTION PASSES 7-0.

EXECUTIVE DIRECTOR REPORT

  1. Portland Regional Office hearings: Executive Director Dionne noted that Dick Dunn, who was serving in a temporary capacity as a hearing officer, was informed that he should not hold any hearings on cases which he could not decide before the end of the year, which meant he was not going to be conducting hearings from September through the end of the year because most cases required a longer timeframe to complete them; as a result Executive Director Dionne requested the other hearing officers cover the hearing dates that Dick Dunn had assigned to him up through the end of the year, and P.Dionne is pleased to note that all of the weeks that HO Dunn had scheduled for hearings are being covered by hearing officers from the other Regional Offices.
  2. Actuarial Study: Executive Director Dionne reported that the Board has received four proposals and a date needs to be scheduled for interviews, Directors J.Mingo and A.Monfiletto will be conducting the interviews in additional to P.Dionne; suggested dates are 11/17, 11/22, 11/29, 11/30, 12/1, or 12/2; P.Dionne requests that the Directors consult their calendar and get back to Staff as to acceptable dates so the interviews may be scheduled as soon as possible, so a recommendation may be made to the Board and the actuarial company commence the project.
Discussion:
Directors and Staff clarified that the submission deadline has been reached; questions regarding the years the actuarial study relates to (2003 & 2004 or 2004 & 2005); Staff will verify the years and inform the Board; the four companies who have submitted proposals are AMI Risk Consultants, Inc.; Glicksman Consulting, Inc.; Mercer Oliver Wyman Actuarial Consulting, Inc.; and Practical Actuarial Solutions, Inc.
  1. Assistant General Counsel position: Assistant General Counsel Collier informed the Board that an advertisement for the position has run and the submission deadline for applications is the end of next week.
Discussion:
Directors and Staff discussed the scope of the search for the Assistant General Counsel position, and that the position has been advertised in the newspaper as well as being posted on the State’s website.

GENERAL COUNSEL REPORT

  1. Section 213(1) Requests for Extension of Benefits Due to Extreme Financial Hardship: Assistant General Counsel Collier notified the Directors that the Section 213(1) Financial Hardship hearing that had been scheduled for this afternoon (Stewart v. SkyPig) has been postponed because the parties are awaiting receipt of a Section 312 IME report, which may resolve the matter.
Assistant General Counsel Collier also noted that the Board has received three more financial hardship hearing requests, and it appears that two of them have other matters still pending at formal hearing so they may not yet be ripe for a Board hearing, however, one of them may need to be scheduled for hearing in front of the Board.Discussion :
Directors and Staff discussed the timeliness of acting on hardship requests; that if there is a hardship going on and the Board is not acting quickly enough, then the Board may not be able to meet the needs of the injured employee; the difficulty with having hardship cases which are continued for long periods of time; these cases need to be heard as quickly as possible; if there is a case that’s ripe, it ought to be scheduled immediately; and the understanding that, assuming the case is ready to go forward, Staff will be in touch with the Board telephonically to ascertain an appropriate scheduling date.
  1. Chapter 5, Medical Fee Schedule, Consensus-Based Rulemaking Committee: Assistant General Counsel Collier noted that the Chapter 5, Medical Fee Schedule, Consensus-Based Rulemaking Committee will be meeting on November 3rd at 1:00 p.m. in Augusta, after the November 3rd Board Meeting.
  2. Newspaper Article – (insurance company price-fixing): Directors mentioned a recent newspaper article regarding alleged insurance company price-fixing.
Discussion:
Directors and Staff discussed a recent newspaper article regarding price fixing collusion between insurance companies, arranging to bid three different amounts over the true value, and selecting the lowest amount, and that the same three companies would bid on a different contract and another insurer would be the lower one; the investigation started in New York City and some of the insurance companies alleged to have been involved also do business in the State of Maine; if there is any involvement or role the Board needs to play in this, such as notifying the Bureau of Insurance or touch base with the Attorney General’s Office to see if they are aware of the situation.

OLD BUSINESS

  1. Deputy Director of Business Services appointment: Chair Dionne noted that this item was dealt with under Subcommittee Reports.

NEW BUSINESS

  1. Legislation: Assistant General Counsel Collier noted that in the Board’s material for today’s meeting there was a packet which includes some legislative proposals as well as a memo from General Counsel J.Rohde; that there are four areas with five proposals, two proposals with respect to the Budget. Mr. Collier indicated he would discuss them in the order they are presented in the memo.
(1) The first one being the IME proposal, a proposal which does a couple of things essentially designed to facilitate IME exams, to speed up the process and to perhaps add to the potential list of IMEs; the first thing that it would accomplish is encourage the parties to agree to the selection of an IME doctor by removing the language that makes agreed upon IMEs binding on the parties, so agreed upon IMEs would be treated under the same standard as Board appointed IMEs, that is, the conclusion of the IME report would be adopted unless there was clear and convincing evidence to the contrary in the record that did not support the medical findings of the IME doctor. Mr. Collier also noted that an additional piece of this proposal would permit the Board, in a situation where the Board decided there was a shortage of specialists in a given area, to appoint doctors to the IME list, even if the doctors had completed Section 207 examinations in the previous 52-weeks, it would permit the Board to waive that disqualification, assuming that the doctor was otherwise qualified, and the doctor could be on the list and perform Section 312 exams until the Board decided otherwise and appointed a doctor qualified under both subsections in that specialty.
Discussion:
Directors, Staff, and Participants discussed the origin of the proposed legislation; Chair’s clarification that the formal hearing process is being delayed because of the lack of qualified IMEs, and as a result formal hearings are taking an additional two-four months depending on how long it takes to get an IME report; the Board previously had nearly 30 IME doctors and are currently down to 13-14, and that in critical areas, where certain specialties are required, it is very difficult to schedule an IME and receive a report within a reasonable amount of time so it is important to achieve some sort of resolution to this problem; the long, difficult fight by Labor and employees to get the statute where it is today, that if a doctor performs a Section 207 exam, they are not qualified to perform an IME, and so the Labor representatives of the Board would not be inclined to agree with the 2nd part of the proposal; questions regarding whether Staff’s suggestions are that the Board remove the impartiality requirement for IMEs so that doctors who are paid consultants for the insurance industry would be designated by the Board as having an adjudicatory power over cases and asked for their input on an impartial basis; the recommendation being based on obtaining an agreement between the Labor and Management representatives regarding certain Independent Medical Examiners relative to specific case; merit regarding the first part of the proposal that it does not make sense that just because the parties agreed to a doctor, that the doctor’s conclusion, whether he misses a major factual issue in a case, is final, and that provision would allow for the selection of 312 examiners and possibly better examiners than would be obtained in any other way because both sides agree that Dr. A is the world’s expert on this issue, it would not require a list at all, that any doctor in the State would qualify if both parties agreed that he is deemed to be the expert, and such an opinion, if the doctor grossly misses the mark, is still subject to review; whether if the agreed upon doctor has done one Section 207 report, they are disqualified or may they still be designated by agreement or whether the doctor must first be appointed to the Board’s list and then can be agreed upon by the parties; Staff’s understanding that the parties could go off the list and would the report be subject to a challenge of qualification; no knowledge of challenges to this type of agreement; it has been past practice that any doctor who the parties agree upon to serve as a Section 312 examiner not on the list, whether or not that doctor performs Section 207 exams, the doctor may be the designated expert; by way of example, many parties are utilizing Dr. Esponnette by agreement; that there are some doctors who are acceptable to almost everyone, who have performed Section 207 exams, who should still be able to perform the exams, but if the parties are satisfied with the doctor, then why is there an arbitrary rule which prevents the Board from using that doctor; perhaps there are some of the doctors who have performed Section 207 exams and the parties may think they are biased or the number of Section 207 exams they have performed is too high to pass the straight-face test; that the parties should at least have the flexibility to accept a particular doctor; Staff currently presents a list of doctors to the Board who then agree upon the list; the structure of the Board is now such that Labor and Management do not have to reach an agreement, there is a tiebreak vote and the compelling argument needs to be made to that person who has to weigh the arguments, like a hearing officer, and make a best decision; there are times when all the Directors will agree, for example, today on the deputy director and hearing officer nominations; the structure is set up now to pass motions and proceed with the business of the Board, but not structured such that the Directors have to agree; a suggestion of a provision or an unwritten agreement that the Board will appoint Section 312 examiners to the list as long as there is unanimity; it is not the Board’s rule that is preventing Section 207 doctors from being on the Section 312 list, it is a statute which was enacted in 1992, so this legislation would be considered an attempt to change the Law Court’s decision; half of the Section 312 examination requests are by the Advocates, which delays the case for 6-8 months, and if an employee is waiting for benefits, it works great for the insurer, but not so for the employee who has to wait 8 months for a medical appointment; whether there is consensus regarding the first paragraph of the recommendation -- the section which proposes a change regarding the weight of the evidence, Section 3, subsection 7; the danger in trying to fix one section at a time, the intent of the proposal inadvertently changing something else; the general consensus that this change alone, standing by itself, would be a beneficial change and would help move cases along; Wisconsin’s success regarding legislation whereby they have an advisory committee consisting of Labor and Management which has been in existence for 12-13 years, and 100% of the legislation proposed by the advisory committee has been approved by their Legislature, the reason being because the legislative committee does not propose legislation unless both management and labor are in favor of it, which has worked well; this tact could be used in most instances regarding legislation, that it would be very difficult for the Executive Director to go to the Legislature and inform them of proposed legislation that the Board is divided on; it is much better to go to the Legislature with a unanimous recommendation from the Board; previously the Board required unanimous approval to submit legislation from the Board, and that the new law has changed the structure of the Board; when new legislation comes out of legislative committee, often times it does not take a unanimous report for that legislation to become law, so the Board needs to move forward in that same direction which does not take unanimous approval to submit legislation and this tactic mirrors the legislative process; sometimes the Board becomes stagnant or deadlocked in an attempt to reach consensus, which is exactly what prompted the change in the Board’s structure so that there is now a tiebreaking vote; if the IME report is considered non-binding and can be challenged, is it the same as a Section 207 exam, which may be challenged; a clear and convincing standard would apply, which is a higher standard than a Section 207 exam, which requires only a preponderance of the evidence; the proposal would keep the law as it now exists for all of the Section 312 exams because when the Board appoints a Section 312 examiner, the examiner’s findings are binding subject to be overturned by the clear and convincing standard; what this language says is even if the two parties agree to have a doctor who is not a Board-appointed Section 312 examiner serve as the Section 312 examiner, those findings are binding subject to the clear and convincing standard, just as it would be if the Board had appointed the examiner, so it would be binding unless the hearing officer finds there is a really good reason based on the evidence and record to not go with the Section 312 report; the suggestion to send the proposal back to the General Counsel to have further discussions with Staff and to come back with suggestions that might be acceptable to the entire Board and as a result facilitate the passage of the proposed legislation.

(2) Mr. Collier reported that the second proposed legislation concerns offsets when an employee returns to work for a different employer than the employer of injury; this proposal is essentially a response to the Grant v. CMP decision from the Law Court, which said that the language of Section 205(9) allows for an offset for return to work for the employer of injury, but not for a different employer; this proposal would permit the offset in either situation, permitting the employer/insurer to take the offset based on information either received directly from the employee or from specific documentation from any other source regarding the employee’s earnings, and the offset would continue so long as the employee had those earnings; that compensation would be restored within seven days after the employee had a reduction in or an elimination of those earnings; the employee could contest the offset in the same manner which they do now for a discontinuance or a reduction by filing a petition for review and a request for a provisional order.

Discussion:
Directors, Staff, and Participants discussed the requirement of reinstatement of benefits and the mechanism for assuring or enforcing the reinstatement which would be a petition for review and request for provisional order; the scenario of an employee who works for company A, is injured, and then goes to work for company B, the insurer of company A would get to take a reduction or termination of benefits; then if the employee works for company B for six months and goes back out of work, is there an automatic requirement that the benefits be reinstated; whether there is a penalty provision if the insurer does not honor the immediate reinstatement; cautions to be very precise in the intent of the proposed legislation, to not try to do too much, that the language which talks about documentation is good; the situation here is where the employee would call the adjuster informing them of the new job and pay status or there is a documented pay stub, not situations where the adjuster claims to have surveillance of an employee carrying his lunchbox into a mechanic’s office, actual documented earnings, and the language in this proposal appears to accomplish that; the language does not appear to address is if an employee is receiving benefits up front under the Bourassa decision, total or paying 100% by decree, it makes sense to take the offset, but to be cautious in cases where a hearing officer has decreed 50% partial; whether the proposal is asking that every decree be treated as a varying rate which it appears to be; if someone is disabled and is losing income because of their injury and if they earn wages, the employer receives a credit, and if they don’t, they get 100%; the rationale appears to be that there should be a week to week adjustment in benefits; whether the proposal relates to total incapacity or fixed partial; whether the objective is to place the employer/insurer in the same position as though the employee had gone back to work for the employer for whom he was working when he was injured; the Grant decision was issued in the fall of 2003, why did it take so long to propose legislation and why is the proposal at the Board level, considering when there was a stacking issue (regarding PI) previously, and the Justices agreed with the hearing officer, the next week there was a bill in front of the Labor Committee which overturned the Law Court’s decision, it would seem that the business community would have been to the Legislature already on this issue; this issue does not have the monetary impact that the stacking decision did, and this proposal is similar to what was happening in the community prior to the Grant decision; the Legislature’s session a year ago was the second term and there was no point at which to introduce new legislation; clarification that if the overall goal was to achieve equity, that’s something that can be looked at; suggestions for the proposal to go back to the General Counsel’s office for additional work and be brought back to the Board at their next meeting in an attempt to reach consensus. (3) T.Collier reported there are two budget bill proposals, one being the All Other and Personal Services Adjustment and the other being the Unified Current Services Budget Submission.

The first one, All Other and Personal Services Adjustment, would require the maximum assessment be adjusted annually to take into account increased costs in the Board’s Personal Service budget which result from increases in employee’s salaries, benefits and other changes, and additionally the consumer price index forecast of the Consensus Economic Forecasting Commission be included in the Board’s All Other budget.

The Unified Current Services Budget Submission is modeled after the Public Advocate’s office budget legislation, and though it is not identical, that was used as the model. This would require the Board to submit its budget recommendations as part of what is called the unified current services budget legislation, which is the Governor’s budget bill; it would go through the budget process through the Appropriations Committee, and then the assessment for that fiscal year would be equivalent to the allocation that was approved by the Legislature in that process.

Discussion:
Directors, Staff, and Participants discussed whether the proposal would totally remove the assessment the cap because Appropriations currently can allot more or less than what the cap is; whether the Board is shifting toward being a Cabinet level agency rather than maintaining its independence, and whether this proposal, if passed, would keep the Board’s independence; whether the assessment would be based on the Board’s recommendations or based on the allocation or budget committee’s recommendations, whether some other entity would decide how many people or how much money was required to run the Agency and allot the Board that amount, which the Board would then assess; how this proposal would help the Board compared to their current procedure; the Board would submit a proposal to the Governor’s Office, the Budget Office, so the process would initially commence with the Board’s proposal, then going through the appropriations process; whether the legislative proposal changes what happens to the Board’s submission from the prior process; currently the Budget Office has not been taking a hands-on approach to the Board’s budget and the Appropriations Committee has not been looking at it, the decision-making is viewed as having taken place at the Board, however, the Legislature does have the authority, but has not been exercising it; this proposal does not increase the Legislature’s authority; what does the Board gain with this proposal; the advantage being that the assessment would be whatever comes out of the Legislative Appropriations process, the assessment process itself would be streamlined; the concept of this proposal was from the Public Utilities Commission (PUC) which has been utilizing this process in regard to their budget; that this was a Staff suggestion from a year or two ago; does this proposal give the Board latitude to decide allocation of positions to each particular category of workload; a suggestion to refer these proposals (Part A & Part B) to the Budget Subcommittee for their review, debate, and discussion and have the Budget Subcommittee decide whether or not to make a recommendation to the Board; if the Budget Committee splits and does not have a recommendation, that will be reported to the Board and they may act on it accordingly; to allow the Board to have some control over their budget and not keep going to the Legislature every two years to ask for more; questions relating to Part A regarding the consumer price index forecast of the Consensus Economic Forecast Commission, why isn’t there just a period after the salaries and benefits language, the Board should have an indication of how much salaries and benefits go up every year based on a contract signed every three or four years, which is what is pushing the budget to the ceiling on the cap; Staff clarified the consumer price index relates to the All Other portion of the budget, which would be in addition to the salary and benefit increases that would apply to the Personal Services portion, the biggest part of the Board’s budget; the All Other portion is other expenses, for example, leases, rent and various other expenses of operations of the Board and this language would provide a mechanism for increasing those allocations as well.

(4) And lastly, Assistant General Counsel Collier reported on the proposed language relating to Board Review Pursuant to Section 320, which was a staff suggested change, and is an effort to try to resolve a conflict created when Chapter 608 amended Section 320 to provide that if the Board does not act within 60 days of an initial request for review under Section 320 (reviews requested by hearing officers of decisions that potentially have consequences throughout the system); however, in almost every case the request from the hearing officer comes first and then there is a motion for findings of fact and conclusions of law filed; the Board has been not reviewing cases until after the motion for findings of fact and conclusions of law has been decided, however, this causes a timing issue; basically this proposal would make the deadline for the Board to act the expiration of the period within which the request for findings could be filed, or the date that a decision on a request for findings is issued; that the language would allow the hearing officer 25 days, a request for findings has to be filed within 20 days; and if a request for findings is filed, then the 60 days for the Board to act would run from the issuance of the decision on findings.

Discussion:
Directors, Staff, and Participants discussed why the language changed the time frame for the hearing officer to request a review from five to 25 days, which would allow time for the parties to file a motion for findings of fact and conclusions of law; if there is no motion, then the 25 days would be the deadline for the hearing officer to request review.

Gary Koocher MOVED TO SUBMIT THE SECTION 320 LEGISLATIVE PROPOSAL AS WRITTEN; John Cooney seconded. MOTION PASSES 7-0.

  1. Hearing Officer reappointments:
    Director Hiltz requested to make a statement, ”that I find it incredibly hypocritical that the Management members were so quick to acquiesce the Law Court results as a criteria for the evaluation of hearing officers on the four we just reappointed today, yet they were so adamant about applying it to Hearing Officer McCurry’s reappointed, and I just want that to go on record that I find that very hypocritical.”

ADJOURNMENT

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

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

(Chair Dionne departed the meeting and Director Hiltz ceased telephone participation at 11:10 a.m.)

Public Forum
11:12 – 11:15 a.m.

Acting Chair Monfiletto, acknowledging the absence of public participants at today’s public forum, called the forum to order at 11:12 a.m. and closed the session at 11:15 a.m.