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WORKERS' COMPENSATION BOARD Board of Directors’ Meeting January 4, 2005

A meeting of the Workers’ Compensation Board of Directors was held on Tuesday, January 4. 2005 at the Board's Central Office in Augusta (located in the AMHI Complex, Deering Building – Rm. 170, Augusta, Maine). Chair Dionne called the meeting to order at 10:02 a.m.

ROLL CALL

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

MINUTES

  1. Draft Minutes: Directors received and approved the draft minutes of their Special meeting that took place on 11-30-04 and of their Business meeting that was held on 12-7-04.

Rodney Hiltz MOVED TO APPROVE THE MINUTES OF NOVEMBER 30, 2004 AND DECEMBER 7, 2004; Gary Koocher seconded. MOTION PASSES 7-0.

EXECUTIVE DIRECTOR REPORT

  1. Tri-Agency Annual Report: In accordance with a mandate that the W.C.B., in consultation with the Superintendent of Insurance and Director of the Bureau of Labor Standards, submit an Annual Report to the Governor and Legislative Committees on Labor and Banking & Insurance by February 15 of each year, Executive Director P.Dionne circulated a draft of the WCB’s portion for the Annual Report and invited Board members to contact him to discuss the report and suggested changes, if any. Mr. Dionne advised directors that the report will then be consolidated with the Bureau of Insurance’s and Bureau of Labor Standards’ reports for a final report and noted the Tri-agency Report must be submitted to the Legislature on or before 2-15-04.
  2. Electronic Filings: Executive Director P.Dionne informed directors that he has been advised by Technology Officer P.Fortier that Bath Iron Works Corp. began filing forms electronically last week and that Board staff will be reviewing the company’s first production files this week.
  3. New Form Filing Requirements (Electronic Filing of Form WCB-1 After January 1, 2005): After advising directors of three waiver forms received since the last meeting, P.Dionne stated Technology Officer P.Fortier is recommending the Board grant the extensions filed by Fireman’s Fund Insurance Company, Meadowbrook, Inc. and American Institute Insurance Company, and to request the three entities 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.

Anthony Monfiletto MOVED TO GRANT THE THREE EDI WAIVER REQUESTS; John Cooney seconded. MOTION PASSES 7-0.

Discussion:
Directors and Staff briefly discussed the question on the Board’s waiver form with respect to IAIABC’s EDI program (Staff noted the question helps the Board in determining what type of electronic data interchange program the entity is currently using, if any, such as IAIABC’s EDI program, or the Board’s proprietary system, and remarked that it also gives the Board an idea of other states who are doing business in Maine).

Gary Koocher MOVED TO ALLOW A SIXTY-DAY MORITORIUM ON FINES FOR PROBLEMS EXPERIENCED BY EMPLOYERS FILING FORMS ELECTRONICALLY AFTER JANUARY 1, 2005; John Cooney seconded.

Discussion on the Board’s New Form Filing Requirements:
Directors and Staff discussed the above motion being voiced at the Board’s last meeting, held on 12-7-04, at which time no action was taken due to lack of a second; the majority of Maine’s employers and insurers being prepared to file forms electronically after 1-1-05 because they are either using the Board’s proprietary program at this time, or IAIABC’s electronic data interchange program, and some of the other entities that have sought an extension to have additional time to migrate to an electronic data interchange program (Staff noted they are currently discussing how best to handle Maine’s small business employers who file ten, or fewer First Reports a year); the Board currently sending letters prior to imposing a penalty under §360(1) (Staff noted the Board, in the past, has notified entities that they have until a certain date to file the correct form(s) and that they will be subject to a penalty under §360(1) if they do not provide the information by that date); sending a letter to employers and insurers who violate the new filing requirements in Ch. 3, Sec. 4 before imposing a penalty; the comments the Board has received to date from MEMIC Representative J.Marr and Maine Chamber of Commerce Representative P.Gore (Director Monfiletto, reiterating Mr. Marr’s comments at the last meeting, stated it only took MEMIC a couple of months to successfully transfer forms electronically to the Board and stated he supports not giving system users any additional time to comply with the new filing procedures); penalty impositions being a deterrent for some entities who have poor claims handling practices; the Board’s discussions over the last year or so regarding the need to implement a mandatory electronic filing process; reconsidering the need for a grace period because ignorance of the new filing procedures in Chapter 3 is no reason to extend the timeframe for parties to come into compliance with the new procedures; Director Cooney’s recent attendance at a meeting in which some individuals approached him about their concerns with being unable to comply with the new filing requirements because of unexpected transmission errors, etc. and what the consequences will be if they are unable to meet the Board’s new requirements (Director Cooney stated he encouraged the individuals to contact Technology Officer P.Fortier to discuss the matter, pointed out that mistakes do happen and that entities do have an opportunity to provide the correct information and noted that some of the questions he was asked dealt specifically with the Board’s mandatory fields); Board staff reviewing electronic filings on a daily basis; the likelihood of transition issues arising with system changes, and the above motion possibly not being needed if the Board already sends letters out notifying entities of missing, or incorrect information prior to penalizing them for non-compliance.

Chairman Dionne called for a vote on the motion:

TO ALLOW A SIXTY-DAY MORITORIUM ON FINES FOR PROBLEMS EXPERIENCED BY EMPLOYERS FILING FORMS ELECTRONICALLY AFTER JANUARY 1, 2005.

MOTION PASSES 4-2-1 (Directors Kirkpatrick and Hiltz opposed; Director Monfiletto abstained).

GENERAL COUNSEL REPORT

  1. New Hire (Assistant General Counsel): General Counsel J.Rohde introduced Jan McNitt who will be performing the duties of the Assistant General Counsel as of 1-3-05. Staff remarked that Former General Counsel T.Collier has accepted a Hearing Officer position at the Portland office.
  2. Requests for Extension of Benefits Due to Extreme Financial Hardship Pursuant to 39-A M.R.S.A. §213: J.Rohde advised directors that the Board will be holding a hearing in the Holland case following the next Board meeting, and noted the hearing will take place at 11 o’clock on the morning of 1-18-05.

OLD BUSINESS

  1. Legislation: J.Rohde, referring to the Board’s two legislative proposals, stated the Board is seeking sponsors for the two bills and noted the Legislature has not posted an alphabetical list of bills on their website, but that he expects one to be available shortly.

DRAFT LEGISLATION SUBMITTED BY THE WORKERS’ COMPENSATION BOARD

BOARD REVIEW UNDER SEC. 320 OF TITLE 39-A

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.

 

INDEPENDENT MEDICAL EXAMINERS

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.

Discussion on Draft Legislation and the First Regular Session of the 122nd Legislature: Directors and Staff discussed the State of Maine website containing a site for the Maine Legislature and Board Staff reviewing the site recently for any new proposals printed in the form of an L.D.; the pre-closure bills listed on the Legislature’s webpage regarding the bills carried over from the last Legislative Session (Staff noted they expect an alphabetical list of bills to be available by the end of the week and instructed participants how to access the site); the Board’s two draft legislative proposals (Staff noted the bills deal with cases the Board handles under §320 of Title 39-A with respect to requests from hearing officers and that with the changes to the Board that took place after the last Legislative Session that the language was amended and now provides that if the Board does not act within 60 days of the initial Request that the Request for Board Review is automatically denied. Staff noted the new language creates the possibility of the 60-day period expiring before findings are issued and that the language denies the Board the opportunity to consider the Request, and stated the new proposal establishes that the time to request review runs from the expiration of the period within which a Motion for Findings of Fact and Conclusions of Law can be filed, or the issuance of findings, whichever is later. Staff reported that the Board’s second bill encourages parties to agree to the selection of an independent medical examiner by establishing that, whether or not the parties have agreed to the selection of an IME, that 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) and seeking sponsors for the Board’s two proposals.

  1. EDI Update: Technology Officer P.Fortier reported on the Board’s receipt of 22 waivers to date—four of whom are from service providers that perform data processing submissions for other entities; the 15 entities currently filing forms electronically via the Board’s EDI Proprietary program, and the testing taking place at this time for two entities migrating to the new electronic data interchange process. Mr. Fortier stated that after reviewing the forms received electronically to date and those filed last year that he has been able to determine that the Board is receiving electronic filings from approximately 70% of the entities who report via the Board’s proprietary method and noted the other 22 entities that have been granted an extension account for the remaining 30%. Directors were also advised that some employers/insurers are using IAIABC’s Release 1 program and that they will be migrating to the Association’s Release 3 program when it becomes available.

Discussion:
Directors and Staff discussed Staff working on a process that allows smaller employers, who file very few forms a year, to file their forms electronically via the Board’s website, if possible (Mr. Fortier stated he has also received a proposal from InformMe and has discussed the development process with MEMIC who may be helpful in receiving in transmitting the information to the Board); P.Fortier’s recent conference calls over the last month with IAIABC Representatives working on the Association’s new Release 3 program and the problems that have arisen during the beta tests on the new program (Mr. Fortier informed directors that IAIABC is still working out the glitches with the new program and that the Association expects to perform more tests on the new EDI program in mid-February); the benefits of electronic filings as it relates to the reduction of administrative and mailing costs; the entities who do work for other states that are currently using IAIABC’s Release I electronic data interchange program (Staff noted that those entities will be migrating to IAIABC’s Release 3 program when the new program becomes available); setting a date specific for the timeframe on when the moratorium, proposed in the above motion, will end (Directors briefly conversed as to Director Koocher’s intent with the motion and the motion applying only to electronically-filed First Reports); the Board’s penalty impositions for late-filed First Reports (Staff explained that the Board can fine an entity $100 under Sec. 360(1)); the three-day mailing timeframe currently allowed for First Report forms sent to the Board via regular mail (Director Monfiletto inquired as to whether the parties will be considered late after 1-1-05 if the filing is not received within seven days. In response, Staff noted the program is not designed for the seven-day receipt, but that it can be reconfigured if the Board determines that the reports will be late after seven days); the Abuse Investigation Unit tracking penalty payments (In response to Mr. Greenier’s inquiry as to whether the Board keeps track of penalty payments, Staff noted the payments are entered into the Board’s system upon receipt and that a process is also in place between the Board and Department of Revenue Services to attach income tax returns in appropriate cases. Staff noted the Board will also notify an entity regarding non-payment and stated the MAE Program also has the ability to refer cases for non-payment of penalties), and the 60-day moratorium, proposed by Director Koocher, ending on 3-4-05 (After a brief discussion as to what Director Koocher’s intent is with respect to setting the 60-day moratorium and the Board’s understanding on when the moratorium would end, Directors agreed that it ends 60 days from today’s date).

  1. Hiring Freeze: Chairman Dionne stated the Board has been granted a waiver to fill its three worker advocate positions and the Assistant General Counsel position and remarked that the Board is awaiting approval on three clerical positions and one Worker Advocate position—the one that became vacant upon J.McNitt’s transfer to the Central Office in Augusta.

ADJOURNMENT

Gary Koocher MOVED TO ADJOURN; John Cooney seconded. MOTION PASSES 4-0-3 (Directors Monfiletto, Hiltz and Kirkpatrick opposed).

The meeting formally adjourned at 10:37 a.m.

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