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WORKERS' COMPENSATION BOARD
Board of Directors’ Meeting and Public Forum
November 16, 2004

A Meeting and Public Forum of the Maine Workers’ Compensation Board of Directors was held on Tuesday, November 16, 2004, at the Board's Augusta Regional Office (located at
24 Stone Street in Augusta).

ROLL CALL

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

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BUSINESS MEETING
9:50 a.m. to 11:10 a.m.
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MINUTES

  1. Draft Minutes of November 3, 2004 Meeting: Directors received and approved the draft minutes of their 11-3-04 business meeting.
Anthony Monfiletto MOVED TO APPROVE THE MINUTES OF NOVEMBER 3, 2004; James Mingo seconded. MOTION PASSES 6-0.

SUBCOMMITTEE REPORTS

  1. Sec. 213 RFP Committee Report: Section 213 RFP Committee Member J.Mingo informed the Board that he and Committee Member A.Monfiletto met with Board staff this morning to review the proposed revisions that have been submitted on the questionnaire sheet the Committee distributed at the last board meeting.
Discussion:
Directors and Staff discussed the document distributed to the Board at its last meeting containing the interview questions the Committee has asked of prior actuaries who submitted bids on performing an actuarial review of the cases paid under §§ 212 and 213; Board staff revising the questions, as discussed at this morning’s Committee’s meeting, and circulating a copy to Committee Members J.Mingo and A.Monfiletto prior to the Committee conducting its interviews on 11-22-04 and staff forwarding the final version of the questionnaire sheet to the Maine Bureau of Purchases for their review, as required by the State’s guidelines (Deputy Director of Benefits Administration S.Minkowsky informed directors that he is required to forward a copy of the interview questions to the Bureau of Purchases for their review, which he plans to do after the Sec. 213 RFP Committee selects an actuarial firm).
  1. IME Subcommittee: IME Subcommittee Member J.Kirkpatrick voiced the following motion on behalf of the IME Subcommittee and announced that she and Subcommittee Member J.Mingo met with Deputy Director B.Inman on 11-3-04 to review the applications the Office of Medical/Rehabilitation Services received from Drs. Crothers and Genova (the two physicians interested in performing independent medical examinations under §312).
Joan Kirkpatrick MOVED TO APPOINT DR. OMAR CROTHERS AND DR. PAUL GENOVA TO THE BOARD’S LIST OF INDEPENDENT MEDICAL EXAMINERS; Anthony Monfiletto seconded. MOTION PASSES 6-0.

EXECUTIVE DIRECTOR REPORT

  1. Governor’s Cabinet Retreat: Executive Director P.Dionne informed the Board that he attended a Cabinet Retreat in Lewiston on 11-8-04 and 11-9-04 and briefly summarized the issues discussed during the event.

    Discussion:
    Directors and Staff discussed the key topics the Governor and Cabinet members discussed at the two-day event (Mr. Dionne informed directors that Governor Baldacci apprised the Committee of his Tax Relief and Tax Reform Plan and that he expressed support for flat funding for all State agencies. Mr. Dionne noted Governor Baldacci also inquired of the Cabinet members what their various departments are doing to keep expenditures down) and the Cabinet’s meetings with State and City officials during the Retreat.
  2. Revised Employer Poster: Referring directors and staff to the revised Employer Poster that
    Deputy Director S.Minkowsky has amended and distributed to directors in preparation of today’s meeting,
    P.Dionne informed the Board that Deputy Director S.Minkowsky is anticipating that the posters will be ready for circulation shortly and that he is recommending the new poster take effect in April of 2005.
Discussion:
Directors and Staff discussed §406 requiring the placement of the poster in a conspicuous place so that its employees have access to the information; the new language in the poster about interpreters (Staff noted the poster has been amended to advise employees about the availability of interpreters. Attorney Case stated the Board may want to clarify the language, or include a specific telephone number for employees to call to inquire about interpreters. Following up on the suggestion, Mr. Minkowsky suggested amending the poster to include a sentence advising employees and the business community that interpreters are available by calling any of the telephone numbers listed); how an injured worker should proceed if his or her employer does not have an ADA Coordinator (J. Greenier, referring to the language on the poster about ADA Coordinators, inquired of Board staff how an employee should proceed if their employer does not have an ADA Coordinator. In response, staff stated that in such cases an employee would want to contact the Board); the discrimination language at the bottom of the poster being boilerplate language used by the State of Maine (Directors inquired as to whether the Board can use different language and asked staff to look into whether the Board is required to use the State’s wording) and staff circulating a revised version of the poster, including the amendments discussed today, at the next Board meeting.
  1. Chapter 3 Form Filing Requirements (Effective January 1, 2005): After acknowledging that the Board granted several waivers at the last meeting to give the entities additional time to comply with Ch. 3 and to migrate to a new electronic data interchange program to file forms electronically with the Board, P.Dionne advised directors that Chubb and Sons has filed a request for a six-month extension to comply with the Board’s new form filing requirements and stated the Board has been taking formal action on the requests.
James Mingo MOVED TO APPROVE CHUBB AND SONS’ WAIVER REQUEST FOR A SIX-MONTH EXTENSION TO COMPLY WITH THE BOARD’S CHAPTER 3 FILING REQUIREMENTS; Anthony Monfiletto seconded. MOTION PASSES 6-0.
Discussion:
Directors and Staff briefly conversed as to whether the Board must take formal action on the Chapter 3 waiver requests and whether the Board can authorize Technology Officer P.Fortier to grant or deny the requests (Board staff noted the rules require the Board to approve the requests).

GENERAL COUNSEL REPORT

  1. Chapter 5 Consensus-Based Rulemaking Committee (Medical Fee Schedule): General Counsel J.Rohde informed the Board that the Consensus-Based Rulemaking Committee met on 11-3-04 to continue its deliberations on the issues that have been raised in regard to Chapter 5, the Board’s Medical Fee Schedule, and remarked that the group will meet again in about six weeks to decide how best to proceed with respect to including Ambulatory Surgical Care centers and other charges such as pharmaceutical expenses and in-patient hospital fees in the Board’s fee schedule.
Discussion:
Directors and Staff discussed the Committee agreeing in concept to the inclusion of Ambulatory Surgical Care centers in the fee schedule (Mr. Rohde noted the group is working on the details as to what fees should be allowed for such services and remarked that the group may apply the same process to in-patient hospital services and pharmaceutical expenses); and the Committee gathering information on the various services for the Consensus-Based Rulemaking Committee to review at its next meeting.
  1. Assistant General Counsel Position: Mr. Rohde reported that the Personnel Subcommittee will be interviewing prospective candidates on 12-2-04 for the Assistant General Counsel position that becomes vacant in January.
  2. Pending Requests for Benefits Due to Extreme Financial Hardship: J.Rohde advised directors that the best dates for the Board to hold hearings on the four pending hardship cases is 12-8-04 and 12-16-04 and stated that if there are no objections he will schedule two cases for each day.
  3. Law Court Decision (Anna Sanders v. Seaside Nursing Home): Directors received a copy of the Law Court’s 11-3-04 ruling in the case of Sanders v. Seaside Nursing Home wherein the Court reversed the hearing officer’s decision finding that because there was no gradual injury, or an aggravation of a gradual injury that the employer’s liability ended when the employee’s symptoms returned to baseline.
Discussion:
Directors and Staff discussed the merits of the Sanders case (Mr. Rohde explained that the employee had an allergy to latex and suffered an aggravation of the allergy after being exposed to latex at her place of employment and that two days after the exposure she was taken out of work at which time her symptoms returned to baseline. Mr. Rohde also informed directors that the Hearing Officer denied a Discrimination petition in the case and granted a Petition for Award concluding there was a compensable injury and that the period of incapacity extended beyond the time the employee left the employment, and that the Court reversed the Hearing Officer’s decision finding there was no aggravation of an injury, or a gradual injury.)

OLD BUSINESS

  1. Draft Legislative Proposals: Referring to the draft legislative proposals he distributed on 10-19-04,
    J.Rohde noted the Board has approved the proposed bill dealing with §320 cases and stated the Board is still considering the other legislation. Mr. Rohde informed directors that the deadline for submitting bills to the 122nd Legislature is 12-1-04.
Note: See legislative proposals below:
BOARD REVIEW
(Approved for Submission on 10-19-04)
Sec. 1. 39-A MRSA §320 is amended to read:
Within 5 days of issuing a decision, a A hearing officer may request that the full board review a decision of the hearing officer if the decision involves an issue that is of significance to the operation of the workers' compensation system. Except when a motion to find the facts specially and state separately the conclusions of law is filed, the request must be made within 25 days of issuing a decision. If a motion to find the facts specially and state separately the conclusions of law is filed the request must be made within 5 days of issuing a decision on the motion. There may be no such review of findings of fact made by a hearing officer. If a hearing officer asks for review, the time for appeal to the Law Court pursuant to section 322 is stayed and no further action may be taken until a decision of the board has been made. If the board reviews a decision of a hearing officer, any appeal must be from the decision of the board. The time for appeal begins upon the board’s issuance of a written decision on the merits of the case or written notice that the board denies review. The board shall vote on whether to review the decision. If a majority of the board’s membership fails to vote to grant review or the board fails to act within 60 days after receiving the initial request for review, the decision of the hearing officer stands. If the board votes to review the decision, the board may delegate responsibility for reviewing the decision of the hearing officer under this section to panels of board members consisting of equal numbers of representatives of labor and management. Review must be on the record and on written briefs only. Upon a vote of a majority of the board’s membership, the board shall issue a written decision affirming, reversing or modifying the hearing officer's decision. The written decision of the board must be filed with the board and mailed to the parties or their counsel. If the board fails to adopt a decision by majority vote, the decision of the hearing officer stands and is subject to direct appellate review in the same manner as if the board had not voted to review the decision. 

SUMMARY

This bill extends the time within which a hearing officer may request review of a decision by the full board to allow for the filing of motions to find the facts specially and state separately the conclusions of law.

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INDEPENDENT MEDICAL EXAMINERS
See Board Discussion and Vote on Page 12

Sec. 1. 39-A MRSA §312(2) is amended to read:

2.  Duties. An independent medical examiner shall render medical findings on the medical condition of an employee and related issues as specified under this section. The Except as provided in paragraph 2-A of this section, the independent medical examiner in a case may not be the employee's treating health care provider and may not have treated the employee with respect to the injury for which the claim is being made or the benefits are being paid. Nothing in this subsection precludes the selection of a provider authorized to receive reimbursement under section 206 to serve in the capacity of an independent medical examiner. A physician who has examined an employee at the request of an insurance company, employer or employee in accordance with section 207 during the previous 52 weeks is not eligible to serve as an independent medical examiner.

Sec. 2. 39-A MRSA §312(2-A) is enacted to read:

2-A. Additional examiners. (A) If the board determines that the list of medical examiners contains an insufficient number of health care providers in a specific health care specialty, the board may appoint one or more health care providers to serve as independent medical examiners for that specific health care specialty if the health care provider is eligible to serve pursuant to subsection 1 of this section but would not be eligible to serve as an independent medical examiner because the health care provider has examined an employee at the request of an insurance company, employer or employee in accordance with section 207 during the previous 52 weeks.
(B) A health care provider appointed pursuant to paragraph A of this subsection shall be removed from the list of independent medical examiners when the board appoints a health care provider for that health care specialty who is eligible to serve as an independent medical examiner pursuant to subsections 1 and 2 of this section.

Sec. 3. 39-A MRSA §312(7) is amended to read:

7.  Weight. If the parties agree to a medical examiner, the examiner's findings are binding. If the board assigns an independent medical examiner, the The board shall adopt the medical findings of the independent medical examiner unless there is clear and convincing evidence to the contrary in the record that does not support the medical findings. Contrary evidence does not include medical evidence not considered by the independent medical examiner. The board shall state in writing the reasons for not accepting the medical findings of the independent medical examiner.


SUMMARY

This bill permits the Board to ensure that it has an adequate number of independent medical examiners in specific health care specialties. This bill allows the Board to appoint a healthcare provider in a specific health care specialty who is qualified pursuant to subsection 1 of this section, but would be disqualified pursuant to subsection 2. The appointment ends when the Board appoints a healthcare provider qualified to serve pursuant to both subsections 1 and 2 to serve as an independent medical examiner in the specific health care specialty.

This bill also encourages parties to agree to the selection of independent medical examiners by establishing that, whether or not the parties have agreed to the selection of an independent medical examiner, the examiner’s findings must be adopted unless there is clear and convincing evidence to the contrary in the record that does not support the medical findings.

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GRANT v. CMP

Sec. 1 39-A MRSA §205(9) is amended to read:

9.  Discontinuance or reduction of payments. The employer, insurer or group self-insurer may discontinue, offset or reduce benefits according to this subsection.

Sec. 2 39-A MRSA §205(9) (A) is amended to read:

A. If the employee has returned to work with or has received an increase in pay from an employer that is paying partial compensation under this Act, that employer or that employer's insurer or group self-insurer may discontinue or reduce payments to the employee.

Sec. 3. 39-A MRSA §205(9) (A-1) is enacted to read:

(A-1) When an employee who is receiving 100% incapacity benefits pursuant to either section 212 or 213 of this Act has obtained post-injury employment with a new employer that is not the employer paying benefits, the employer, insurer or group self-insurer may offset benefits only in accordance with this paragraph.

        (1) The employer, insurer or group self-insurer must receive specific verbal or written confirmation of actual earnings from the employee or specific documentation of actual earnings from any other source.

        (2) The employer, insurer or group self-insurer must notify the Board and the employee of the offset taken pursuant to this paragraph.

        (3) Within 7 days after notice that the employee no longer has earnings or has reduced earnings from the employment with the new employer, the employer, insurer or group self-insurer shall must reinstate payment of 100% incapacity benefits to the same level as before the offset or shall must reinstate payment of benefits to a level that reflects the reduction in earnings.

Sec. 2. 39-A MRSA §205(9) (C) is amended to read:

(C) The employee may file a petition for review, contesting the employer’s discontinuance, or reduction or offset of compensation under this subsection. Regardless of whether the employee files a petition prior to the date of the discontinuance, or reduction or offset, benefits may be discontinued, or reduced or offset as described in paragraph A, A-1 or B.

SUMMARY

        This legislation permits an employer to reduce or discontinuance benefits when an employee receiving partial compensation returns to work for or receives an increase in pay from the employer that is paying compensation.

        This legislation permits an employer, insurer or group self-insurer to offset its obligation to pay incapacity benefits when an employee who is receiving 100% incapacity benefits pursuant to either section 212 or 213 obtains employment with that employer or with an employer other than the employer paying benefits. The employer, insurer or group self-insurer must obtain confirmation or documentation of the earnings before taking an offset. The ability to offset ends as soon as the employee has a reduction in earnings and benefits must be reinstated to 100% incapacity benefits, if the employee no longer has any earnings, or reinstated to a level commensurate with the employee’s reduced earnings. An employee can contest an offset of benefits pursuant to this section by filing a petition for review.

ANTHONY MONFILETTO MOVED TO APPROVE THE GRANT V. CMP LEGISLATION, AS WRITTEN; Joan Kirkpatrick seconded.

Discussion:
Directors and Staff discussed the above motion pertaining to the draft bill attached to J.Rohde’s
11-20-04 legislative memo; the amended bill removing the provision in §205(9) (A) -- the existing law that applies to employees returning to work for the same employer
(Attorney Muir advised directors that staff’s original draft appropriately addressed the offset issue and noted the first two revisions in the revised bill are not objectionable, but that the third change raises a great deal of concern in the business community because it repeals §205(9)(A), which is the statutory provision used by employers and insurers to discontinue benefits when an employee returns to work for the same employer. As an example, Mr. Muir noted that in a case in which an employee is out of work with a sprained knee and is receiving 100% incapacity benefits and then returns to work after a month that under the existing law his or her employer can file a Discontinuance to end benefits. Mr. Muir stated the bill before the Board requires that if an employer has paid an employee 100% incapacity benefits and the employee returns to work or is laid off at some point that the employer is then required to automatically reinstate the employee’s benefits and remarked that there would be no mechanism in place for the employer/insurer to close a case. Mr. Muir explained that the only mechanism in place at the present time is §205(9) (A), which will be amended to be apply only to partial incapacity cases if the bill passes and noted employees would have an automatic workers’ compensation insurance policy, regardless of whether they are laid off, fired, the employee suffers a reduction in its workforce, or if the employer decides to close its business); the likelihood of the Board shifting the current debate to the Legislature if the draft bill is submitted as written; the Grant v. C.M.P. case dealing with a case in which the employee allegedly “double-dipped” and was able to collect additional benefits; ensuring equity in the system and not subjecting injured workers to different rules, regardless of whether they are returning to work for the same employer, or for a different employer (Mr. Muir noted the statute already makes a distinction with return-to-work situations and stated the bill before the Board will result in the reinstatement of benefits. Mr. Muir noted the amended bill does not allow an employer to end its obligation to pay in situations in which employees returns to work); the issue at hand raising many questions of fairness as it relates to an employee “double-dipping”; the draft bill allowing injured workers to collect workers’ compensation benefits in the future for reasons unrelated to their compensable work injury; the distinction under the existing law which gives employers/insurers the ability to file a 21-Day Discontinuance or a Petition for Review of Incapacity to end an employee’s benefits when he or she returns to work for a different employer and the revised bill no longer allowing the employer to file a Discontinuance or a Petition because it would only apply to employees receiving partial incapacity benefits; the draft bill no longer allowing an employer or insurer to end its obligation to pay workers’ compensation benefits to employees who have collected 100% incapacity benefits (Mr. Muir noted the new language requires an employer/insurer to refer to the language in §205(9)(A)(1) which will specifically state that an employer must reinstate benefits upon receipt of a seven-day notice if the employee had been receiving 100% incapacity benefits); the draft bill addressing the issue of “double dipping”, but also allowing employees to receive workers’ compensation benefits in the future for reasons unrelated to his or her compensable work injury; those cases in which employers take advantage of the language in the statute when an employee returns to work (Attorney Case noted the draft bill also provides the employee with security in a case in which he or she is falsely returned to work and is no longer receiving benefits because the employer has stopped paying benefits under §205(9)(A)); how best to proceed with respect to changing the law to alleviate “double dipping” (Mr. Muir stated the language in the bill will be problematic because it allows for reinstatement after two years and recommended the Board submit two separate bills and remarked that the Board may want to consider crafting language similar to that used for Trial Work Agreements which requires an employee to return to work for a specific period of time before benefits can be stopped); some of the issues discussed today being addressed by the 122nd Legislature during its work sessions and hearings on the bill (Director Hiltz noted anyone can submit legislation and seek sponsors for proposals they would like the Legislature to address and stated he believes the bill before the Board is a balanced approach); the Board dealing with the issues raised as opposed to submitting a bill to the Legislature; drafting legislation that addresses only the Grant v. C.M.P. case; the draft bill giving the Board an opportunity to address the issues as a group in a united way; the reality of the legislative process and the Legislature having the ability to rewrite a bill; the unintended consequences of the draft bill such as those cases in which an employee automatically qualifies for 100% incapacity benefits due to a prior compensable work injury; an inability to predict the costs associated with the statutory change; Attorney Case’s remarks regarding the inequity in place with respect to an employer having the ability to automatically discontinue an employee’s benefits when he or she returns to work; what steps the Board needs to take to make the bill equitable for all the parties involved; an employer not having the power to determine whether an employee’s benefits should stop after he or she returns to work; decrees issued in cases adjudicated being binding on the parties unless they are overturned by a higher Court, which preserves an employee’s rights to an adjustment of his or her workers’ compensation benefits; voluntary return-to-work cases, and the process of receiving a decree, through the Board’s formal hearing process, to stop benefits which takes approximately nine months (Mr. Muir noted that in some cases the parties agree to settle the case as opposed to litigation).

Rodney Hiltz VOTED IN FAVOR OF MOVING THE QUESTION; Anthony Monfiletto seconded. MOTION PASSES 4-1-0 (Director Mingo opposed and Director Koocher abstained).

Chairman Dionne called for a vote on the motion:
TO APPROVE THE GRANT V. CMP LEGISLATION, AS WRITTEN.

MOTION PASSES 4-2 (Directors Koocher and Mingo opposed).

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UNIFIED CURRENT SERVICES BUDGET SUBMISSION

Sec. 1. 39-A MRSA §154(6) is amended to read:

6.  Assessment levied.

     A. Beginning in the 2007-08 fiscal year T the assessments levied under this section may not shall be designed to produce sufficient revenue to fund expenditures approved and allocated by the Legislature pursuant to this section. more than $6,000,000 in revenues annually beginning in the 1995-96 fiscal year, more than $6,600,000 annually beginning in the 1997-98 fiscal year, more than $6,735,000 beginning in the 1999-00 fiscal year, more than $7,035,000 in the 2001-02 fiscal year, more than $6,860,000 beginning in the 2002-03 fiscal year, more than $8,390,000 beginning in the 2003-04 fiscal year, more than $8,565,000 beginning in the 2004-05 fiscal year or more than $8,525,000 beginning in the 2005-06 fiscal year. Assessments collected that exceed $6,000,000 beginning in the 1995-96 fiscal year, $6,600,000 beginning in the 1997-98 fiscal year, $6,735,000 beginning in the 1999-00 fiscal year, $7,035,000 in fiscal year 2001-02, $6,860,000 beginning in the 2002-03 fiscal year, $8,390,000 beginning in the 2003-04 fiscal year, $8,565,000 beginning in the 2004-05 fiscal year or $8,525,000 beginning in the 2005-06 fiscal year by a margin of more than 10% must be refunded to those who paid the assessment. Any amount collected above the board's allocated budget and within the 10% margin must be used to create a reserve of up to 1/4 of the board's annual budget. The board, by a majority vote of its membership, may use its reserve to assist in funding its Personal Services account expenditures and All Other account expenditures and to help defray the costs incurred by the board pursuant to this Act including administrative expenses, consulting fees and all other reasonable costs incurred to administer this Act. The board shall notify the chairs and members of the joint standing committee of the Legislature having jurisdiction over labor matters whenever the board receives approval from the State Budget Officer and the Governor to use reserve funds to increase its allotment above the allocation authorized by the Legislature. Any collected amounts or savings above the allowed reserve must be used to reduce the assessment for the following fiscal year.

     B. The board shall determine the assessments prior to May 1st and shall assess each insurance company or association and self-insured employer it’s pro rata share for expenditures during the fiscal year beginning July 1st. Each self-insured employer shall pay the assessment on or before June 1st. Each insurance company or association shall pay the assessment in accordance with subsection 3.

      C. The board shall submit its budget recommendations as part of the unified current services budget legislation in accordance with Title 5, section 1663 to 1665. The expenditures provided in this section are subject to legislative approval. The board may also receive other funds as appropriated by the Legislature.

     D. Except as specified in this subsection, funds that are not expended at the end of a fiscal year do not lapse but must be carried forward to be expended for the purposes specified in this section in succeeding fiscal years; but, with the exception of funds carried forward from fiscal year 2006-07 to fiscal year 2007-08, unexpended funds in excess of 10% of the total annual assessment authorized in this section must, at the option of the Workers’ Compensation Board, either be presented to the Legislature in accordance with paragraph C for reallocation and expenditure or used to reduce the Administrative Fund assessment in the following fiscal year. In the case of funds carried forward from fiscal year 2006-07 to fiscal year 2007-08, 100% of these funds may be expended for the purposes specified in this section.

SUMMARY

This legislation requires the board to submit its budget recommendations as part of the unified current services budget legislation. The assessment for a fiscal year shall be equivalent to the allocation approved by the Legislature for that fiscal year.

 

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ALL OTHER & PERSONAL SERVICES ADJUSTMENTS

Sec. 1. 39-A MRSA §154(6) is amended to read:

6.  Assessment levied. The assessments levied under this section may not be designed to produce more than $6,000,000 in revenues annually beginning in the 1995-96 fiscal year, more than $6,600,000 annually beginning in the 1997-98 fiscal year, more than $6,735,000 beginning in the 1999-00 fiscal year, more than $7,035,000 in the 2001-02 fiscal year, more than $6,860,000 beginning in the 2002-03 fiscal year, more than $8,390,000 beginning in the 2003-04 fiscal year, more than $8,565,000 beginning in the 2004-05 fiscal year or more than $8,525,000 beginning in the 2005-06 fiscal year. Beginning on April 1, 2005, the maximum assessment under this section shall be annually adjusted by an amount equal to the change that results from applying the Consumer Price Index forecast of the Consensus Economic Forecasting Commission to the portion of the budget designated “All Other” and the change in the portion of the board’s budget designated “Personal Services” that results from changes in employee salaries and benefits that will be in effect during the next fiscal year. Assessments collected that exceed $6,000,000 beginning in the 1995-96 fiscal year, $6,600,000 beginning in the 1997-98 fiscal year, $6,735,000 beginning in the 1999-00 fiscal year, $7,035,000 in fiscal year 2001-02, $6,860,000 beginning in the 2002-03 fiscal year, $8,390,000 beginning in the 2003-04 fiscal year, $8,565,000 beginning in the 2004-05 fiscal year or $8,525,000 beginning in the 2005-06 the maximum assessment in a fiscal year by a margin of more than 10% must be refunded to those who paid the assessment. Any amount collected above the board's allocated budget and within the 10% margin must be used to create a reserve of up to 1/4 of the board's annual budget. The board, by a majority vote of its membership, may use its reserve to assist in funding its Personal Services account expenditures and All Other account expenditures and to help defray the costs incurred by the board pursuant to this Act including administrative expenses, consulting fees and all other reasonable costs incurred to administer this Act. The board shall notify the chairs and members of the joint standing committee of the Legislature having jurisdiction over labor matters whenever the board receives approval from the State Budget Officer and the Governor to use reserve funds to increase its allotment above the allocation authorized by the Legislature. Any collected amounts or savings above the allowed reserve must be used to reduce the assessment for the following fiscal year. The board shall determine the assessments prior to May 1st and shall assess each insurance company or association and self-insured employer its pro rata share for expenditures during the fiscal year beginning July 1st. Each self-insured employer shall pay the assessment on or before June 1st. Each insurance company or association shall pay the assessment in accordance with subsection 3.

SUMMARY

This bill requires that the maximum assessment be adjusted annually to take into account changes in the cost of the board’s Personal Services budget that result from changes in the cost of employee salaries and benefits and changes, equivalent to the most recent Consumer Price Index forecast of the Consensus Economic Forecasting Commission, in the cost of the board’s All Other budget.

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ALL OTHER & PERSONAL SERVICES ADJUSTMENTS
DRAFT PROPOSAL

Discussion:
Directors and Staff discussed Chairman Dionne’s deliberations with Governor Baldacci on the Board’s draft budgetary bills (Mr. Dionne noted he discussed the Board’s draft budget bills with the Governor and noted Governor Baldacci supports flat funding for all State agencies, commented that Governor Baldacci feels the same way about the WCB as he does General Fund agencies and noted any proposal resulting in an increase to the cap would be contrary to the Governor’s philosophy. Chairman Dionne stated the Board may want to vote against the two proposals); the Board not being required to act on the draft bills before them (Director Monfiletto suggested taking no action on the two proposals instead of voting against them) and the proposals not taking effect until the FY06/07 budget year.

Directors caucused at 10:46 a.m.; returned to the meeting at 10:55 a.m.

Discussion on the IME draft proposal (see pages 5 & 6):
Directors and Staff discussed the draft IME legislation (Staff noted that the first part of the draft bill states that the Board can appoint a healthcare provider to the specialty needed if it does not have an examiner, even if the physician had performed a §207 examination during the prior 52 weeks and that it states that if the Board finds a healthcare provider in that same specialty who does not have that similar situation and appoints that person that the first person is automatically removed from the list); the second part of the bill changing the weight of an independent medical examiner’s report if the parties agree on the examiner (Staff noted that the current rules state the Board is bound by the examiner’s findings if they agree on the doctor beforehand and remarked that the standard would be lowered to “clear and convincing evidence”, which is the case for independent medical examinations where the examiner is appointed by the Board); the proposal being helpful in reducing some of the cases put on hold waiting for an independent medical examiner with their required specialty; the issue arising as a result of the Law Court’s decision in the Lydon case; the bill possibly resulting in many §312 independent medical examiners being deposed and subject to cross examination because of the potential bias; not allowing §312 medical examiners to qualify as an independent medical examiner under §312 if they have performed a §207 examination; the inadequate number of independent medical examiners currently available to perform §312 examinations which is resulting in delays in some cases and some parties being at a disadvantage because of the delays; the misrepresentation of independent medical examinations with respect to those parties and physicians who refer to a §207 examination as a binding §312 examination and the Board most likely voting unanimously on the draft bill if the language in the second part of the legislation is removed.

James Mingo MOVED TO AMEND THE BILL, AS DISCUSSED, AND TO SUBMIT THE BILL
TO THE LEGISLATURE, AS AMENDED; Anthony Monfiletto seconded. MOTION
PASSES 6-0.

 

INDEPENDENT MEDICAL EXAMINERS
-Revised-


Sec. 3. 39-A MRSA §312(7) is amended to read:


7.  Weight. If the parties agree to a medical examiner, the examiner's findings are binding. If the board assigns an independent medical examiner, the The board shall adopt the medical findings of the independent medical examiner unless there is clear and convincing evidence to the contrary in the record that does not support the medical findings. Contrary evidence does not include medical evidence not considered by the independent medical examiner. The board shall state in writing the reasons for not accepting the medical findings of the independent medical examiner.


SUMMARY


This bill permits the Board to ensure that it has an adequate number of independent medical examiners in specific health care specialties. This bill allows the Board to appoint a healthcare provider in a specific health care specialty who is qualified pursuant to subsection 1 of this section, but would be disqualified pursuant to subsection 2. The appointment ends when the Board appoints a healthcare provider qualified to serve pursuant to both subsections 1 and 2 to serve as an independent medical examiner in the specific health care specialty.


This bill also encourages parties to agree to the selection of independent medical examiners by establishing that, whether or not the parties have agreed to the selection of an independent medical examiner, the examiner’s findings must be adopted unless there is clear and convincing evidence to the contrary in the record that does not support the medical findings.

ADJOURNMENT

Joan Kirkpatrick MOVED TO ADJOURN TODAY’S MEETING; James Mingo seconded. MOTION PASSES 6-0. The meeting formally adjourned at 11:10 a.m.

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PUBLIC FORUM
11:50 a.m. to 12:14 p.m.
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Directors, Staff and Public Participants discussed the Board’s Public Forum Procedures as it relates to dates of injury prior to 1993; conducting a survey to determine how best to proceed with holding public forums; Mr. Greenier’s comments regarding the conversations he has had with some individuals who have attended prior public forums and been frustrated because they believe their concerns are not being addressed by the Board; Ms. Greenier’s inquiry as to whether an unrepresented employee can file a Petition for Discrimination (Board staff noted that in most cases a Petition for Discrimination is filed by an employee’s attorney or a worker advocate, but that anyone has the ability to file a petition with the Board); the extent of the Board’s ability to discuss pre-1993 cases (Board staff noted the current Act repealed the prior Workers’ Compensation Act which dealt with injuries prior to 1993 and remarked that the Board handles all cases through its dispute resolution process. Attorney Case also explained that the Board does not have the authority to discuss any case at a public forum and that the Board began holding its public comment sessions to allow the public to come in and talk about the current law. Mr. Case noted the Board has no authority or discretion to rewrite the workers’ compensation laws prior to 1993, but that it does have authority to address legislation to change the laws after 1993. Staff also informed the group that the Board only deals with specific cases such as those brought forward by a Hearing Officer under §320. Directors, Staff and Participants also discussed those individuals who attend public forums that address the technical problems with the system which sometimes results in legislation. Ms. Mayo noted injured workers rarely need to address technical issues at a public forum noting they oftentimes appear at the sessions to address issues regarding their specific cases) and the Board’s monitoring, audit and enforcement program (In response to Mr. Greenier’s concerns with respect to his employer not being audited to date, Staff stated the MAE Program has conducted several audits—some of which have resulted in penalty impositions and noted the MAE Program issues an Annual Compliance Report and quarterly compliance reports that demonstrate the conduct of all of the entities processing workers’ compensation claims in the State of Maine. Staff also advised the group that the Audit Division has referred a few cases to the Bureau of Insurance for further investigation).

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