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

A meeting of the Workers’ Compensation Board of Directors was held on Tuesday, December 7, 2004 at the Board's Central Office in Augusta (located in the AMHI Complex, Deering Building – Room 170, Augusta, Maine). Chair Dionne called the meeting to order at 9:57 a.m.

ROLL CALL

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

EXECUTIVE DIRECTOR REPORT

State of Maine Hiring Freeze: After acknowledging receipt of an Executive Order from Governor Baldacci, dated 11-24-04, wherein he institutes a hiring freeze for State Government, P.Dionne reported that the Board, in accordance with the Governor’s Executive Order, submitted a waiver to fill the vacant positions in the Worker Advocate Program and Legal Division. Executive Director Dionne advised directors that the Board has been granted a waiver to hire three Worker Advocates and the Assistant General Counsel, and informed the Board that a waiver has been filed to fill the advocate position formerly held by J.McNitt.
Possible Relocation of the W.C.B.’s Augusta Offices: P.Dionne informed directors that the Board continues to look into other office space for its Augusta offices and noted Board staff recently looked at the office space currently being used by the Department of Labor.

Discussion:
Directors and Staff discussed the Department of Labor’s consolidations of all of its units; Board Staff negotiating the rental costs for the Department’s space and the Department possibly providing the Board with a subsidy to cover those costs that are in addition to the Board’s current costs.

New Form Filing Requirements (Mandatory Electronic Filing of Form WCB-1 After
January 1, 2005): After acknowledging the Board’s receipt of seven waiver forms entities have filed pursuant to Chapter 3 requesting an extension of time to comply with the Board’s new form filing requirements in Section 4 which require employers and insurers to file all First Report of Injury forms, involving a day or more of lost time, electronically after 1-1-05, Executive Director Dionne, on behalf of Technology Officer P.Fortier, recommended granting the waivers for six months and requesting the entities to come into compliance on or before 7-1-05.

CHAPTER 3 - FORM FILING

§ 4. Electronic filing

1. “Electronic data interchange” or “EDI” means the computer-to-computer exchange of business transactions in a standardized electronic format. Acceptable formats are (1) the State of Maine Proprietary EDI Format, and (2) an International Association of Industrial Accident Boards and Commissions (IAIABC) enhanced Release 01 Flat-File Format.

2. All First Reports of Injury (WCB-1) involving a day or more of lost time shall be filed with the Board by EDI not later than January 1, 2005.

3. All Notices of Controversy (WCB-9) shall be filed with the Board by EDI not later than July 1, 2005.

4. All Memoranda of Payment (WCB-3) shall be filed with the Board by EDI not later than January 1, 2006.

5. The Board, at its discretion by majority vote of its membership, may grant an employer, insurer or third-party administrator a waiver of the filing requirements of this section if the employer, insurer or third-party administrator establishes to the satisfaction of the Board that compliance with these requirements would cause undue hardship. For purposes of this section, undue hardship means significant difficulty or expense. The selection of EDI format is one factor that the Board may consider in deciding upon a request for a waiver. Requests for waivers should be submitted in writing and addressed to the Chair of the Workers’ Compensation Board, 27 State House Station, Augusta, Maine 04333-0027.

6. The Board file shall include all electronic submissions, regardless of whether a paper copy is physically in the file.

Discussion:
Directors and Staff briefly discussed how best to proceed with granting the waivers – voting on each waiver individually, or grouping them into one motion.

Gary Koocher MOVED TO GRANT ALL OF THE EDI WAIVERS; Joan Kirkpatrick seconded. MOTION PASSES 5-1 (Director Monfiletto opposed).

Conclusion:
Directors concluded their discussion on electronic filings after receiving an update on IAIABC’s new EDI Program (Release 3) and the Board’s proprietary program, which some employers are currently using.

GENERAL COUNSEL REPORT

Legal Division Employees (Assistant General Counsel): General Counsel J.Rohde advised directors that Assistant General Counsel T.Collier has accepted a Hearing Officer position at the Portland office and remarked that Jan McNitt has been hired for T.Collier’s position and that she will be assuming her new duties as Assistant General Counsel on 1-3-05.
Pending Request for Extension of Benefits Due to Extreme Financial Hardship: J.Rohde informed directors that they will be receiving a draft decree in the Stewart case for their review and signature, and reminded Board members of the upcoming hearing in the case of Glenn Holland v. International Woolen Co. which the Board has scheduled for 11 o’clock on 1-18-05.
Pending Legal Matter: After advising directors of a Worker Advocate’s receipt of a Subpoena to attend a divorce proceeding in Belfast to testify about an employee’s lump-sum settlement, J.Rohde informed directors that T.Collier attended the Court proceedings in Belfast and that the case has been continued.
Possible Rule Changes (Sec. 213(1) Procedures): J.Rohde informed directors that he is drafting some proposed rules for the Board’s consideration with respect to its handling of the cases it receives pursuant to 39-A M.R.S.A. §213(1).
Request For Full Board Review of a Hearing Officer’s Decision Pursuant to
39-A M.R.S.A. §320 (Wade v. So. Maine Agency on Aging): After acknowledging the Board’s receipt of a Request for Board Review from Hearing Officer Richard Dunn, dated 11-30-04, J.Rohde informed directors that Hearing Officer Dunn is seeking clarification as to whether the filing of an Answer to a Petition for Award satisfies the requirement in WCB Rule Ch. 1, §1(1)(C) that a Notice of Controversy be filed. Mr. Rohde noted the Chair takes a roll-call vote on such requests to determine whether the Board is in favor of granting the Request.

Discussion:
Directors and Staff discussed the employee in the Wade case filing a Petition for Award on 3-25-03 which was dated 3-21-04, the employer filing an Answer to the Petition on
4-8-03 and the Hearing Officer determining that the filing of an Answer did not satisfy the requirement that the employer/insurer file a Notice of Controversy form denying the claim (Staff noted the employer was ordered to pay total incapacity benefits after taking a credit for earnings and other statutory offsets, until a NOC is filed); the Board issuing briefing schedules in the case, prior to holding a hearing, if the Board votes to review the matter; a hearing officer’s ruling in another workers’ compensation case wherein an Answer to a Petition for Award did satisfy the requirement in Chapter 1 with respect to filing a Notice of Controversy form within 14 days and the Request being filed timely.

Chairman Dionne, by a roll-call vote, inquired of each Board member if they are in favor of granting the Hearing Officer’s Request.

Rodney Hiltz No

Gary Koocher Yes

Paul Dionne Yes

Joan Kirkpatrick No

James Mingo Yes

Anthony Monfiletto No

MOTION FAILS 3-3
(Directors Hiltz, Kirkpatrick and Monfiletto opposed; Director Cooney absent).

OLD BUSINESS

122nd Legislature (Joint Standing Committee on Labor): Board Staff announced that the following Senators and Representatives will be sitting on the 122nd Legislature’s Joint Standing Committee having jurisdiction over Labor matters and stated Senator Strimling and Representative Smith have been appointed Committee Chairs.

122nd LEGISLATURE
JOINT STANDING COMMITTEE ON LABOR

Senator Ethan Strimling, Chair
Senator Philip Barlett, II
Senator Lois Snowe-Mello
Representative William J. Smith, Chair
Representative John Tuttle, Jr.
Representative Deborah Hutton
Representative Troy Jackson
Representative Herbert Clark
Representative Timothy Driscoll
Representative Brian Duprey
Representative Phillip Cressey, Jr.
Representative Darren Hall
Representative James Hamper

Discussion:
Directors and Staff briefly conversed with respect to Representatives W.Smith, D.Hutton, T.Jackson and P.Cressey also sitting on the Labor Committee during the last Legislative Session; the few legislative documents that have been printed to date in the form of an L.D. and Board Staff circulating copies of any and all legislation that may be of interest to the Board, or any bills that may have an impact on the Workers’ Compensation Board.

NEW BUSINESS

Chapter 3 Form Filing Requirements: Staff informed directors that the item is back on the agenda for today’s meeting for the Board to discuss whether it should implement a grace period for parties migrating to a new electronic data interchange program after 1-1-05.

Discussion:
Directors and Staff discussed the comments made at the last meeting regarding the business community’s concerns with respect to being penalized for late First Reports filed electronically after 1-1-05 and Maine Chamber of Commerce Representative P.Gore’s suggestion that the Board implement a grace period for penalty impositions for those entities being required to file a lost-time First Report form electronically after 1-1-05, which would also allow the Board to develop an efficient electronic data transfer process prior to imposing late fees (Staff stated the Board can send a letter to an employer/insurer advising them of an incorrect, or late First Report and advising them that they will be subject to a penalty of $100 if they do not provide the proper information by a specific date); the Board discussing waivers a few years ago for late First Reports; whether the Board should allow a grace period since the statutory provision has been in place for over ten years; those employers and insurers who are already familiar with electronic filings; a grace period allowing for a “checks and balances” process and giving the Board time also to ascertain whether any changes may need to be made to various fields and if the Board decides to impose a grace period for penalties under Sec. 320 whether it should be for 30, 60 or 90 days (Director Kirkpatrick suggested only allowing one late filing and/or limiting the grace period to 30 days); the penalty imposition falling under the provisions of Sec. 360(1) of Title 39-A which states an entity is subject to a penalty of $100 for filing a late form; MEMIC’s experience with migrating to an electronic data interchange program (MEMIC Representative J.Marr indicated that Maine Employers Mutual Insurance Company was successful in working with Board Staff in testing its electronic transmissions in order to avoid forms being rejected, which took approximately a couple of months to complete); the grace period applying to mainly employers who have no experience with filing forms electronically with the Board (Staff noted a grace period would be helpful to system users not familiar with EDI and stated the grace period will not be applicable to those employers/insurers who have been granted a waiver); whether the Board would be creating an unfair process with the grace period if it results in only some entities being penalized; the process currently in place for those individuals who feel they have been incorrectly penalized, which is handled by the Board’s Abuse Investigation Unit; the waivers the Board has granted to date giving entities additional time to comply with the Board’s new filing requirements in Ch. 3, Sec.4; a grace period also allowing system users to create an efficient electronic interchange process before being penalized for a late-filed First Report form and creating goodwill between the Board and the business community; some opposition to the grace period believing the parties should be expected to comply with the new filing requirements on or before 1-1-05; the Board’s proprietary system being in place for some time; the $100 penalty fee imposed for late filings being a deterrent for poor compliance; the Business community’s concerns with respect to experiencing problems once it begins filing forms electronically and being penalized for filing forms late; the Board not penalizing MEMIC to date for any incomplete filings; whether a grace period, if instituted, should be a blanket waiver for 30 or 60 days, or a grace period applicable to individuals beginning to file forms electronically after 1-1-05; sending a letter to any entity filing a late form advising them that the Board has received the late filing and of the possibility that a fine may be imposed if they do not submit the correct information by a specific date; giving the parties a specific date in which $100 fines will be imposed under Sec. 320 if they have not obtained a waiver for an extension of time to comply with the Board’s new form filing requirements in Chapter 3, Sec. 4; the Board discussing mandatory electronic filings for over a year; Technology Officer P.Fortier’s recommendation with respect to instituting a 30-day grace period for late electronic filings received after 1-1-05; the motion Director Koocher voiced at the last meeting regarding the Board setting a 60-day moratorium on such fines; what fields, if any, may be rejected such as those fields in which an employer/insurer enters a comma (,) instead of a dash (-) or fails to enter the correct information (Staff explained that the mandatory fields such as the box in which you enter the UIAN number, a date of injury, etc. will result in a late filing if the information is missing and stated the acknowledgement record going back to the entity filing the form will give them a reason why it is being rejected with instructions to file the form again); Technology Officer P.Fortier’s comments with respect to most entities experiencing few problems with electronic transmissions if they follow the document provided; the Board receiving electronic filings during the day and through the night -- up until 6 o’clock the following morning at which time the records are processed (Director Mingo also pointed out that an entity may be receiving a notice of a late filing if the form is filed on the last day and not reviewed until the next morning. Staff noted those First Report forms that are filed on the last day that are rejected will be considered late under the Board’s rules and regulations); Staff’s remarks regarding the benefits of electronic filing process which allows the Board to reduce its administrative costs and for employers/insurers to reduce their administrative and mailing costs; the Board generating and reviewing electronic filings once a day and whether employers and insurers will be required to file First Report forms within seven days after 1-1-05.

Gary Koocher MOVED TO ALLOW A SIXTY-DAY MORITORIUM ON FINES FOR PROBLEMS EXPERIENCED BY EMPLOYERS FILING FORMS ELECTRONICALLY AFTER JANUARY 1, 2005 (no action taken due to lack of a second).

ADJOURNMENT

Rodney Hiltz MOVED TO ADJOURN; Anthony Monfiletto seconded. MOTION PASSES 7-0.

The meeting formally adjourned at 10:38 a.m.

Return to 2004 Board Minutes

Rodney Hiltz	No
Gary Koocher	Yes
Paul Dionne	Yes
Joan Kirkpatrick	No
James Mingo	Yes
Anthony Monfiletto	No