MAINE WORKERS' COMPENSATION BOARD

Document Sample
MAINE WORKERS' COMPENSATION BOARD Powered By Docstoc
					                  MAINE WORKERS' COMPENSATION BOARD
                Board of Directors’ Meeting and Public Forum
                              August 22, 2006

A Business Meeting and Public Forum of the Maine Workers’ Compensation Board of
Directors was held on Tuesday, August 22, 2006, at the Board’s
Lewiston Regional Office, located on 36 Mollison Way.

                                       ROLL CALL

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

Chairman Dionne called the meeting to order at 10:39 a.m.

                           BUSINESS MEETING
                                 10:39 a.m. to 1:29 p.m.

                                        MINUTES
1)    Draft Minutes (August 8th Business Meeting): Directors received, revised and
      approved an amended version of the draft minutes of the business meeting they
      held at the Central Office, in Augusta, on August 8th.

      Discussion / Amendments:
      Directors Koocher and Kirkpatrick asked staff to correct the top of page 2 by changing the
      word exuberant to exorbitant and to correct the typographical errors found on pages 5
      and 6.

      Joan Kirkpatrick MOVED TO APPROVE THE MINUTES OF AUGUST 8,
      AS AMENDED; James Mingo seconded. MOTION PASSES 6-0-1 (Director
      Hiltz abstained).

                            SUBCOMMITTEE REPORTS
1)    Budget Subcommittee Report: After acknowledging the Budget Subcommittee’s
      deliberations this morning on the FY08/09 budget, Chairman Dionne stated the Board will
      be discussing the FY08/09 budget submission when it addresses the issues listed
      on today’s agenda, under New Business, and noted the group has called
      Commissioner Wyke to discuss the extension of the budget deadline.
                                               2


                     EXECUTIVE DIRECTOR REPORT
1)   Draft Actuarial Report Prepared by Practical Actuarial Solutions, Inc.: Executive
     Director P.Dionne informed Board members that staff held a telephone
     conference with the Actuary Jeffrey Kadison, as discussed at the last Board
     meeting, and reported he has provided both Board caucuses with a copy of the
     minutes of the discussion. Chairman Dionne stated the Board will also need to
     discuss when to meet with Mr. Kadison to deliberate further on his Draft Actuarial
     Report, prepared in accordance with 39-A M.R.S.A. §213.

     Discussion:
     Directors and Staff discussed the Board members currently focusing on its budget
     submission for fiscal years 2008 and 2009, and meeting with
     Mr. Kadison again in September or October (Mr. Dionne advised directors that
     Mr. Kadison has a prior commitment on September 12th and cannot meet with
     the Board at that time, noted he will not be able to participate in the discussion
     on the draft report at the second meeting in September because he will be
     attending the 92nd Annual IAIABC Convention and stated the Board will most
     likely be meeting with Mr. Kadison in October);
     Board members availability to attend a special board meeting on
     August 29th ,, if necessary (Chairman Dionne stated that it appears that some
     members are available on the 29th of August and that others are not, and that it
     would be difficult to schedule a meeting on that day);
     Mr. Kadison providing answers to the Board’s questions regarding his Draft
     Actuarial Report, to the best of his ability, and possibly asking
     for further direction from the Board on the matter (Mr. Dionne stated the Board
     may need to provide Mr. Kadison with further guidance on how best to proceed
     with respect to finalizing his actuarial report, prior to the report coming before
     the full Board for final action); Mr. Kadison being available to meet with Board
     members on October 10th, the date of the first board meeting scheduled for the
     month of October (Directors Monfiletto and Koocher apprised Board members of
     their inability to attend the meeting scheduled for October 10th because of
     employment commitments) and staff contacting all of the Board members to
     inquire as to their availability in September and October to ascertain what date
     is best to hold the second meeting in September, if the Board decides to
     reschedule that meeting and to determine what dates are best for the full Board
     to meet with Mr. Kadison regarding the Draft Actuarial Report.



                           Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                3


                      EXECUTIVE DIRECTOR REPORT
                             CONTINUED
2)   Hearing Officer Request: After advising Board members of a request he received from
     Hearing Officer J.Sprague to teach a daytime Business Law class, Executive Director
     Dionne asked Board members if they object to Hearing Officer teaching Business
     Law classes during business hours, if the activity does not interfere with efficiently
     managing his formal hearing cases.

     Discussion:
     Directors and Staff discussed Hearing Officer Sprague’s request to teach two
     Business Law classes for one semester; the classes being held from 8:00 a.m. to
     9:00 a.m., three times a week; some Board members being adverse to the request
     because they believe it will interfere with Hearing Officer Sprague’s daily
     employment responsibilities; most Board formal hearings beginning at 9:00 a.m.
     and the teaching commitment possibly resulting in hearings starting later in the
     day, which could result in scheduling conflicts and delays for the parties; Board
     members not objecting to Hearing Officers teaching evening courses and staff
     notifying Hearing Officer Sprague of the Board member’s concerns and objection
     to his request.

                       GENERAL COUNSEL REPORT
1)   Memorandum of Decision (Michael Richards v. S.D. Warren Co, et al .): General
     Counsel J.Rohde, referring to the Law Court’s July 27th decree in the Richards
     case, informed the Board that the employer appealed a Workers’
     Compensation Board ruling under 39-A M.R.S.A. §213(1).
     Mr. Rohde explained that Mr. Richard’s incapacity benefits were terminated at
     the time he was working part-time, three days a week and advised the Board
     that he requested and was granted an extension of his benefit limitation. Board
     members were also advised that the Law Court states the Record supports the
     facts in the case and that the Board did not err in its interpretation of the law
     and upheld the Workers’ Compensation Board’s decision.

2)   W.C.B. Draft Rule Chapter 3: General Counsel J.Rohde reported staff have
     forwarded the proposed amendments in WCB Draft Rule Chapter 3 to the
     Attorney General’s office for pre-review and approval for the Board to proceed
     with adopting the rules under the Administrative Procedures Act.




                            Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                 4


                        GENERAL COUNSEL REPORT
                              CONTINUED

3)    Board Review Under 39-A M.R.S.A. §320 (Leeanne Fernald v. Shaw’s Supermarkets, Inc.):
      General Counsel Rohde advised Board members that a briefing schedule will be
      going out shortly in the Fernald case, which the Board accepted for review on
      July 11th and stated the matter will come back before the Board sometime in
      November after all of the briefs have been filed in the case.

4)    Pending Litigation: General Counsel Rohde stated he will be asking to meet with
      the Board in an executive session, prior to adjourning today’s meeting, to discuss
      a pending Superior Court appeal in the case of Hannaford Brothers v. Workers’
      Compensation Board and a matter involving a settlement offer.

5)    Drat Regulatory Agenda: General Counsel J.Rohde, referring to the
      Draft Regulatory Agenda he prepared for the Board, apprised directors that
      agencies must submit their regulatory agendas to the Secretary of State’s office
      by September 1st and asked Board members if they have any revisions or
      additions for the Draft Regulatory Agenda.

      Discussion:
      Directors and Staff discussed the Board not being required to take formal action
      on an item that appears on a regulatory agenda (Staff informed the Board that
      regulatory agendas simply provide the Legislature with a list of rulemaking
      items an agency may address during the coming year and stated some of the
      items on the Board’s draft agenda appear on the document each year).

Directors caucused at 10:56 a.m.; returned to meeting at 10:59 a.m.

                                   OLD BUSINESS
1)    FY08 and FY09 Budget: Chairman Dionne stated the Board is awaiting a call
      from Commissioner Wyke regarding its budget submission for fiscal years 2008
      and 2009, and stated the Board will be returning to this item later in the day, after
      speaking with Commissioner Wyke at the Department of Administrative &
      Financial Services.



                             Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                               5


                                 NEW BUSINESS
1)   WCB Draft Rule Chapter 5: Deputy Director of Medical/Rehabilitation Services
     Inman provided Board members with a Summary of Public Comments the Board
     received on its proposed amendments in WCB Draft Rule Chapter 5 and briefly
     summarized the Commentators remarks regarding various sections of the
     amended Medical Fee Schedule.

     Discussion:
     Directors, Staff and Public Participants discussed the Board holding a public
     hearing on the Board’s Draft Medical Fee Schedule on May 31st and accepting
     written comments until the close of business on June 12th; the four
     Commentators who testified orally on the proposed rule changes in WCB Draft
     Rule Chapter 5, who also provided written comments on the draft fee schedule
     and receipt of written comments from a total of seven individuals; WCB Draft
     Rule Chapter 5 incorporating the 2005 CPT Codes and portions of the 2005
     RBRVS, defining “in-patient”, clarifying procedures relative to CPT disputes
     and standardizing reimbursement for travel, lodging and meals; Commentator 1
     supporting the changes in Section 3 of the revised fee schedule with respect to the
     list of revenue codes being excluded (Deputy Director of Medical/Rehabilitation
     Services B.Inman noted the amendment allows for the inclusion of all of the
     services that fall under Code 45); Commentator 1 requesting clarification of the
     time period for the 5% discount upon payment of ambulatory and hospital
     charges so that the time is measured from the date of the hospital bill and not
     the date of the receipt by the insurer and stated that hospital and ambulatory
     surgical care centers not be forced to accept reduced payment (Staff noted the
     amendment allows the Board to include all of the emergency room visit items
     that fall under Code 45 is inclusive now of the services that fall under that code
     and states that if a bill is late that the insurer is entitled to the 5% discount);
     Commentator 1 disagreeing with the language in Section 3 adding language that
     facility fees be reimbursed at 100% of “usual and customary” charges and
     supports providers being reimbursed based on charges or the established fee
     schedule (Staff advised Board members that it may want to parallel the language
     in the statute referring to “usual and customary” charges) and Commentator 1
     asking for clarification regarding all hospital services not being subject to the
     fee schedule based on charges, less the 5% received within 30 days (Staff noted
     Commentator 1 states that carriers are reimbursing less than the full amount and
     claiming that the payment is based upon “usual and customary” rates);
     Commentator 4 addressing the


                           Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                          6


                  NEW BUSINESS CONTINUED

Discussion Continued:
amendments in Section 3 of the revised fee schedule by stating that in order to
clarify that the professional fee is paid under the fee schedule that the Board
should change the rule to add hospital reimbursement for facility fees, for
clarification purposes, and suggested adding a paragraph stating the facility
portion of the inpatient admission or ambulatory surgical care center is not
subject to the Board’s Medical Fee Schedule but that all professional fees are, as
long as they are identified by a CPT Code; Commentator 2 speaking on the
amendments to Section 6 of the draft rule by requesting clarification on how the
follow-up days are determined and whether they are based upon CMS guidelines
or whether the Board determine them (Staff informed the Board that follow-up
days are based on CMS Guidelines and that it may want to further clarify the fee
schedule by stating the days are determined by basing the days upon CMS
guidelines); Commentators 1 and 2 submitting comments on the changes in
Section 9 and agreeing with the language in that portion of the fee schedule
which prohibits insurers from changing CPT codes on its invoices; Commentator
3 addressing the language in Section 13 of the fee schedule by noting injured
workers are submitting reimbursement for meals and requests the Board set
parameters for that section of the rule and that there be only one section in
Chapter 5 that deals with reimbursement for meals and mileage (Staff noted
Commentator 6 suggested the Board require a receipt under Section 13 showing
the expenses incurred and that it be considered part of the employee’s healthcare
treatment and remarked that an obligation to pay for meals exists only on trips
exceeding 150 miles and recommended the Board require receipts for “actual
costs” for lodging. Staff pointed out that Commentator 7 states that there should
be a receipt required for the actual costs for lodging and that the language read
“actual, reasonable and necessary costs up to a maximum of $120 accompanied
by a receipt.”
Ms. Inman advised directors that Commentator 7 suggests amending the fee
schedule with respect to reimbursement for meals so that it applies to
“compensable” injuries and not “claimed” injuries and suggests receipts be
required for meals and to impose a distance requirement for such
reimbursements, such as 80 miles or more one way from the employee’s
residence. Ms. Inman also apprised the Board that another commentator
expressed concern with the cost to the system for meal reimbursement without
requiring a receipt, or without setting a limitation on the distance


                      Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                           7


                  NEW BUSINESS CONTINUED

Discussion Continued:
for which reimbursement is allowed. Staff noted there is no distance
requirement in the fee schedule but that Section 312 of the Maine Workers’
Compensation Act has an 80 mile distance requirement and stated the
Board could include language in the revised fee schedule to parallel the language of
the statute. Staff noted that Commentator 7 asked that meal
and mileage reimbursement not be subject to compliance regulations,
since they are not obligations required by the Act. Staff reported that Commentator
3 addressed the cost impact to the system for reimbursing employees for meals
without requiring a receipt or a distance limitation); Commentator 4 alleging that
hospitals are including physician charges on their bills for in-patient and/or out-
patient services and proposing the charges should fall under professional fees and be
paid according to the Board’s fee schedule; Commentator 6 stating the 5% discount
allowance
is illegal and modifiers 80 and 81, for surgery, since two billing entities
submit charges and that the total payment should be the same as the payment level
for an individual with 50% of the payment made to each billing entity;
Commentator 6 recommending an employee be required to travel 150 miles or more,
from their residence, for purposes of
reimbursement under the WCB Draft Rule Chapter 5; Commentator 2 encouraging
the Board to consider increasing the $40.00 conversion factor
for anesthesia and indicating that the commercial conversion factor for anesthesia
is $47.00 to $52.00 (Staff noted that the differential for reimbursement rates between
anesthesia and out-of-physician services is contributing to the difficulty in recruiting
anestheologists and resulting in those costs being shifted to hospitals); Commentator
4 requesting clarification when both anesteologists and CRNA’s, working in a
hospital, bill for services (Staff informed the Board that Commentator 4
states that some CRNA’s are billing almost five times the amount of that charged by
a doctor in private practice); Commentator 2 supporting the conversion factor of
$60.00 in Section 20 for physician services;
Commentator 5 asserting there are too many physicians now who refuse
to treat people under workers’ compensation because of the multitude of burdens
regarding the treatment of injured workers and that although a higher conversion
rate would allow more physicians to treat injured



                       Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                8


                        NEW BUSINESS CONTINUED

      Discussion Continued:
      workers, accepts this rule as a compromise; Commentator 6 alleging the $60.00
      conversion factor is 25-33% higher than other payers in private insurance;
      Commentator 2 proposing the adoption of the 2004 RBRVS and 2004 CPT Codes
      and suggests an increase in the reimbursement for trigger point injections so that
      the reimbursement is more in line with the skills that are required to do the
      injections well (Staff noted the Board currently downloads the relative value
      units from CMS and noted CMS does not single out CPT codes and change it for
      specific purposes and that the Board may want to take that into account) and the
      general comments received on the rule from Commentator 6 who states that the
      Board has proposed an amended fee schedule that violates the law because there
      is no fee schedule for hospitals and ambulatory surgical centers and because a
      limited fee schedule allows a doctor to charge more than what is charged to
      private, third-party payers for similar services; Commentator 7 who believes
      that the Board has the responsibility and is required by the Act to adopt a
      hospital fee schedule and remarks regarding hospital and pharmacy costs being
      of great concern to premium-paying employers and insurance carriers; Staff
      recommending the Board adopt the CPT Codes at this time so that it the Board
      and system users are following the current version of the CPT codes to avoid
      problems for billing entities who currently need to maintain the codes for 2002,
      to figure the costs subject to the Board’s Medical Fee Schedule, and suggested the
      Board continue to find a way to reach a consensus on how best to proceed with
      respect to ambulatory surgical care centers, “inpatient” services, regulating
      pharmaceuticals and the conversion factor.

Directors caucused at 11:12 a.m.; returned to meeting at 11:23 a.m.

      Rodney Hiltz MOVED TO UPDATE THE CPT CODES, ADOPT THE RBRVS AND
      ADD TO THE LANGUAGE THE EXPENSES FOR MEALS, MILEAGE, LODGING
      AND TO STATE THE REIMBURSEMENT RATE IS BASED ON 80 MILES, ONE WAY,
      AND REQUIRES A RECEIPT; Anthony Monfiletto seconded (withdrawn).




                            Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                 9


                         NEW BUSINESS CONTINUED

      Discussion:
      Directors, Staff and Public Participants discussed clarification the motion regarding
      the requirement of receipts and whether it pertains to only lodging, or for meals,
      mileage and lodging (Mr. Hiltz stated the intent of his motion was to not require
      an employee to present a receipt for meals and mileage. In response, Attorney
      Muir stated present practice is that insurers are requiring receipts for meals
      before paying the bills); the rule stating lodging will be reimbursed for anyone
      traveling 150 miles (Staff noted the reference to 80 miles was for meal
      reimbursement. Director Hiltz stated his motion states lodging will be
      reimbursed for 80 miles one way, or 160 miles roundtrip. Public Participant
      asked whether an individual will be required to maintain a record of their
      mileage and, in response, staff stated an employee should be writing down the
      mileage to and from the service provider) and Director Hiltz’ withdrawal of his
      motion and Director Monfiletto’s withdrawal of his second to the motion.

Directors caucused at 11:26 a.m.; returned to meeting at 11:42 a.m.

      Rodney Hiltz MOVED TO UPDATE CHAPTER 5 TO ADOPT THE 2005
      CPT CODES, TO APPROVE THE MOST RECENT RELATIVE UNIT VALUES, TO
      ACCEPT THE EXPENSES IN THE FEE SCHEDULE EXCEPT CHANGE THE MILES IN
      SECTION 13(1)(B) TO BECOME 80 MILES OR MORE, ONE WAY; Joan
      Kirkpatrick seconded.

      Discussion:
      Directors, Staff and Public Participants discussed Director Mingo’s comments
      regarding the Board not complying with the legislative mandate to generate a
      Medical Fee Schedule that includes all payers into the system; including
      hospitals; what is considered a reasonable roundtrip with respect to reimbursing
      an employee for lodging, and taking into account the difficulty an injured
      worker may have in traveling a long distance to and from a service provider; the
      proposed rule paralleling the language in Chapter 4 stating the employee must
      travel 150 miles one way (Attorney Muir stated insurers run into the problem
      with an employee



                             Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                          10


                  NEW BUSINESS CONTINUED

Discussion:
wanting to treat somewhere else, such as Boston and stated an insurer may be
more apprehensive to allow an employee to seek a medical opinion from a
physician outside of the State if they will also be required to pay for an employee
to stay overnight. Director Kirkpatrick, in response, stated an employee should
not be expected to make a five or six hour trip in one day. Mr. Muir noted
insurers pay the mileage for the roundtrip costs and stated much of the concern
stems from a Law Court ruling on necessary and reasonable travel costs shall be
reimbursable and commented that the Board is establishing a policy on
“reasonable and necessary” and stated it should be set at a point that it is
actually reasonable and necessary and that 80 miles, each way, is not necessary
reasonable and commented that 150 miles is reasonable and necessary. Director
Hiltz noted some employees may feel well enough to make such a trip in one
day, but that the motion sets a standard); Chairman Dionne’s support for the
language in WCB Draft Rule Chapter 5 stating the employee will be reimbursed
for lodging for travel for 150 miles, one way (In response, Director Monfiletto
stated 150 miles is a long distance for an employee to be expected to travel);
Attorney Muir’s remarks regarding the variables with respect to what kind of
procedure the employee is going for, what shape the employee is in, what time of
day the appointment is, etc. and stated he has concerns with the Board removing
the discretion from an adjuster with respect to an employee obtaining an
opinion from another provider (Mr. Muir noted that an adjuster will approve
reimbursement for a hotel if an employee is undergoing a procedure such as a
spinal injection but that if an employee just wants to travel to Boston
for physical therapy that an adjuster will not want to pay for overnight lodging
and commented that by shortening the distance the Board is taking away the
discretion adjusters currently have. Mr. Muir stated that industry-wide adjusters
are apparently handling employees in a reasonable manner and suggested the
adjuster be given the discretion on determining whether the employee should be
reimbursed for overnight expenses. Director Hiltz stated the same theory applies
to an injured worker, and commented that the Board may want to leave the
discretion up to the injured worker).




                      Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                          11


                  NEW BUSINESS CONTINUED

Joan Kirkpatrick MOVED TO AMEND THE MOTION TO CHANGE THE
LODGING REIMBURSEMENT FROM 80 TO 100 MILES; Rodney Hiltz seconded.
MOTION PASSES 4-3 (Directors Monfiletto, Koocher and Mingo opposed).

Discussion:
Directors and Staff discussed the Board not including hospitals, prescription drugs
and outpatient services in the revised fee schedule, before the Board, because the
Chapter 5 Consensus-Based Rulemaking Committee was unable to reach a
consensus on those issues (Director Koocher inquired as to whether there was a
majority opinion with respect to a consensus on those issues. In response,
General Counsel stated the ground rules for the Committee stated any
agreements had to be unanimous); many of the Members of the Chapter 5
Consensus-Based Rulemaking Committee extending an offer to continue
participating on the group, if needed (Director Koocher stated he believes the
Board is ignoring a legislative mandate that those items be included in the fee
schedule and stated those costs are significant to the system); Director Cooney’s
misunderstanding as to the consensus the group reached with respect to it
reaching an agreement on all items except for the rates and the conversion factor
(Staff noted the group agreed to include ambulatory surgical care centers in the
fee schedule, but that there was no agreement on what the rates should be and
how they should be set and that there was no agreement on including hospitals
in the schedule).

Joan Kirkpatrick MOVED TO MOVE THE QUESTION; Rodney Hiltz
seconded. MOTION PASSES 7-0.

AMENDED MOTION PASSES 4-3 (Directors Mingo, Koocher and Cooney
opposed).




                      Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                 12


                         NEW BUSINESS CONTINUED

     Discussion:
     Directors and Staff discussed reconvening the Chapter 5 Consensus-Based
     Rulemaking Committee to consider the 2007 CPT codes that are published in
     February of 2007 and to deliberate on including hospitals, pharmacy’s and
     outpatient services in the fee schedule because of the costs to the system.

2)   Draft 2005 Annual Compliance Report: Deputy Director of Benefits Administration
     S.Minkowsky and Management Analyst II J.Levesque summarized the data in the
     2005 Draft Annual Compliance Report, via a Power Point presentation, and
     informed Board members that the Monitoring, Audit & Enforcement Program will
     be seeking Board approval to change the compliance calculation for Notice of
     Controversy forms to 14 days, as opposed to 17 days, since the forms are now
     filed electronically.

                  DRAFT 2005 ANNUAL COMPLIANCE REPORT

                         COMPLIANCE REPORT SUMMARY

          LOST-TIME FIRST REPORTS, INITIAL INDEMNITY BENEFITS, AND FILING OF
            MEMORANDUM OF PAYMENT FORMS AND NOTICE OF CONTROVERY FORMS


     Staff reported that a Lost-time First Report must be filed no later than seven days after
     the employer has notice of knowledge of an employee’s incapacity and stated the parties
     are complying with the Board’s requirements; that a Memorandum of Payment form is
     timely is if is received at the Board no later than 17 days (14 days plus the three-day
     allowance for mailing), after the employer has notice of knowledge of the employee’s
     incapacity and that a Notice of Controversy form is considered timely if it is received no
     later than 17 days. Mr. Minkowsky advised Board members that compliance is currently
     based on 14 days (plus the three days for mailing purposes) and remarked that the
     Board may want to change the compliance timeframe to 14 days, by a board vote, since
     the form must be filed electronically, according to the provisions in WCB Rule Chapter 3.

     Rodney Hiltz MOVED TO CALCULATE THE COMPLIANCE OF INITIAL
     INDEMNITY NOTICE OF CONTROVERSY FORM FILINGS BASED ON 14 DAYS,
     AS OPPOSED TO 17 DAYS; Joan Kirkpatrick seconded.
     (vote on page 13)



                             Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                 13


                        NEW BUSINESS CONTINUED
Directors caucused at 12:05 p.m.; returned to meeting at 12:11 p.m.

          DRAFT 2005 ANNUAL COMPLIANCE REPORT CONT’D
      Discussion:
      Directors conversed briefly with respect to not changing the compliance
      calculation until the Board is confident that no more changes need to be
      considered for electronic filings and that EDI is working well for all parties
      (Staff noted they are asking for the compliance calculation to change as of
      January 1, 2007); the parties no longer needing an additional three days to file a
      Notice of Controversy form because the Board’s rules require that the form be
      filed electronically as of July 1, 2006 and the change taking effect in January of
      2007, which will give the Board additional time to address any issues that may
      arise with respect to electronic filings.

      MOTION PASSES 4-2-1 (Directors Koocher and Cooney opposed and Director Mingo
      abstained).

1)    Continuation of WCB Draft Rule Chapter 5: Acknowledging the lack of a mileage
      allocation in the amended motion on Chapter 5 regarding reimbursement for
      meals, Chairman Dionne proposed the following motion setting the mileage
      allocation for meals under Chapter 5 at
      50 miles one way.

      Paul Dionne MOVED TO INCLUDE A MILEAGE ALLOCATION OF 50 MILES FOR
      MEAL REIMBURSEMENT IN CHAPTER 5; John Cooney seconded. MOTION
      PASSES 4-3 (Directors Hiltz, Kirkpatrick and Monfiletto opposed).

          DRAFT 2005 ANNUAL COMPLIANCE REPORT CONT’D

2)    Continuation of 2005 Draft Annual Compliance Report: Deputy Director
      Minkowsky and Management Analyst Levesque continued with their report on
      the Draft 2005 Annual Compliance Report.




                             Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                            14


                   NEW BUSINESS CONTINUED
    DRAFT 2005 ANNUAL COMPLIANCE REPORT CONT’D

LOST-TIME FIRST REPORT FILINGS
Management Analyst Levesque advised directors that the WCB received 14,989 Lost-
time First Reports in 2004 and reported the Board received 86% of the filings in 0-7
days. Mr. Levesque also apprised the Board that it received 586 fewer First Reports
than in 2004 and that there were 1,373 fewer than in 2003 and that approximately 90%
of the forms were filed within 10 days. Mr. Levesque stated that in 2000 the Board
received 18,400 First Reports which is below 15,000 and that there were 3,430 fewer
First Reports since 2000 and that compliance in this area continues to improve. Mr.
Levesque advised directors that the Board is receiving fewer First Report forms and that
the forms are being filed in a
timelier manner.

14-DAY PAYMENTS
Deputy Director Minkowsky reported that initial payment compliance has improved to
86.6% within 0-14 days, that overall compliance has improved by 7% and that there are
hundreds of households receiving timely payments who were not receiving timely
payments previously. Management Analyst Levesque noted the trends seen is that
payment compliance is rising, which has a lot to do with the Monitoring, Audit &
Enforcement Division focusing on Third-party Administrators and the entities working
under Corrective Action Plans.

INITIAL MEMORANDUM OF PAYMENT FORM FILINGS
Management Analyst Levesque stated Memorandum of Payment filings is an important
indicator and reported compliance has improved by approximately 1% over last year and
that since the MAE Program began it has increased to nearly 9%.

INITIAL INDEMNITY NOTICE OF CONTROVERSY FILINGS
Deputy Director Minkowsky reported that timely Notice of Controversy filings were at
approximately 92% and noted the figure is approximately 8% higher than initial
Memorandum of Payment filings and 2% higher than First Report of Injury filings. Mr.
Minkowsky stated there is no problem seen with timely-filed Notice of Controversy
filings, going back to 1999, when the Board conducted a NOC Pilot Project. Mr.
Levesque indicated, per the Board’s direction, that staff also addressed the percent of
initial indemnity claims denied in 2004 forward and explained to Board members that the
compliance element appeared in last year’s report and this




                        Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                             15


                    NEW BUSINESS CONTINUED
    DRAFT 2005 ANNUAL COMPLIANCE REPORT CONT’D

INITIAL INDEMNITY NOTICE OF CONTROVERSY FILINGS CONT’D
report, and that the number received is just below 15,000 and remarked that the Board
received approximately 7,300 Notice of Controversy filings in which there was no activity
because claimants returned to work and that the remaining 7,700 lost-time claims were
actually claims for compensation and that of those claims that slightly over 3,000 were
total initial indemnity Notice of Controversy filings and that the Board received 4,068 total
initial Memorandum of Payment forms. Mr. Levesque advised the Board that when the
MAE Program looked at that figure, following the Board’s direction, that there were
approximately 20% of the Lost-time First Report forms that resulted in an indemnity
Notice of Controversy form being filed. and that when you look at the claims for
compensation that approximately 39% reported initial indemnity Notice of Controversy
form filings as their initial activity. Mr. Levesque indicated that when the MAE Program
was developed that it was stipulated that if the focus was put on front-end administration
that the Board would start to see a decline in the number of cases entering dispute
resolution and noted the Board saw a 2% decrease.

OVERALL COMPLIANCE
Mr. Minkowsky also reported on industry performance as it relates to the Board’s
benchmarks and announced that the Monitoring, Audit & Enforcement Division use two
comparisons in its calculations (14-day payments and initial Memorandum of Payment
filings). Mr. Minkowsky, referring to the data on 14-day payments, stated the Board’s
benchmark for Memorandum of Payment filings is 80% and that the industry
performance is at 86.59%, which is 6.59% higher than the benchmark and that for initial
Memorandum of Payment filings the benchmark is 75% and the Board was advised the
annual performance in this area is 83.93%, which is 8.93% over the Board’s benchmark.

Discussion:
Directors and Staff discussed the charts giving the appearance that there is a large
difference between the percentages and redesigning the charts to provide the
Board and community with a fair representation of the differences.

TRENDS
Management Analyst Levesque stated the Monitoring, Audit & Enforcement Division also
looks at the industry, as a whole, to see what sectors are doing well and what areas the
Division needs to focus on to improve the industry’s overall compliance. Mr. Levesque
stated the Monitoring, Audit & Enforcement Division removed Maine



                         Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                            16


                    NEW BUSINESS CONTINUED
    DRAFT 2005 ANNUAL COMPLIANCE REPORT CONT’D

TRENDS
Employers’ Mutual Insurance Company’s data when it performed its analysis because
MEMIC is a product of the Legislature and has a large share of the workers’
compensation market, which can skew the data. Mr. Levesque reported that the overall
compliance for 2005 was at 87% and that the compliance for standard insurance
companies is actually below the Board’s benchmark and is an area the Board should be
looking at. Mr. Levesque also informed the Board that MEMIC has a high compliance
level with respect to initial indemnity payments, which is another reason to remove them
from the sample. Mr. Levesque advised Board members that for the first year of the
analysis that self-insureds, who administer their own claims, have the highest
compliance of all of the sectors which is not surprising because they understand prompt
administration of their claims helps them keep their costs down and commented it is the
same way across the Country.
Mr. Levesque further reported that the same is true for self-insureds who have
Third-party Administrators handling their claims. Mr. Levesque stated Third-party
Administrators historically have the lowest compliance and largest administration
problems. Mr. Levesque informed the Board that the Monitoring, Audit and Enforcement
Division is also working on other activities relating to Third-party Administrators, in an
effort to improve their claims handling practices.

Discussion:
Directors, Staff and Public Participants discussed whether the MAE Program is
imposing fines for those entities working under a Corrective Action Plan (In
response to Director Koocher’s inquiry as to what fines, if any, are imposed
against those entities working under a Corrective Action Plan, Staff explained
there are no fines for those working under a CAP); in-state Third-party
Administrators not being as problematic as
Out-of-state Third-party Administrators (Staff noted that is where they are
placing their focus at this time); the breakdown for self-insured,
Self-administered and self-insured, and Third-Party Administrators
(Staff reported the TPA portion is generally Third-party Administrators working
on large deductible policies for other insurance companies and noted they
handle approximately 14% of the market); Maine Employers Mutual Insurance
Company handling 30% of the workers’ compensation market; a larger
percentage of insurance companies attaining a higher level of compliance level,
as compliance improves over time; a large




                        Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                           17


                  NEW BUSINESS CONTINUED
    DRAFT 2005 ANNUAL COMPLIANCE REPORT CONT’D

Discussion Continued:
portion of insurance companies not meeting the Board’s benchmarks because of
the number of small players who have generally poor compliance; the charts for
the trends for each insurance company and per the Board’s directive including a
utilization analysis; each of the insurance companies receiving the Draft 2005
Annual Compliance Report for their review prior to the report being printed; the
percent of total
Lost-time First Reports denied and percent of total claims for compensation
denied (Staff stated the data is the same that the Board approved last year); the
Board comparing Notice of Controversy filings against First Report forms filed
on lost-time cases (In response to an inquiry as to how the Board ascertains
whether there is a claim for compensation filed, if there is only a First Report
form filed and the Board has not received a Notice of Controversy form on the
case Staff reported that the difference between the two is that the first metric
includes lost-time claims in which a claimant has returned to work, within seven
days, and there is no further activity and that the second including claims in
which the claimant was either paid, or the claim was denied); why a comparison
would be made if there was no claim for compensation; for data purposes if a
lost-time claim is received and the Board receives a return-to-work date
indicating there is no further activity and the parties have not filed a
Memorandum of Payment filing or Notice of Controversy form filed, if there is a
return-to-work within seven days the claim is not removed from the data for
purposes of Notice of Controversy form filings (Staff noted that there are those
that return to work within 7 days or those that receive compensation. Director
Kirkpatrick noted the Board is measuring the number of Notice of Controversy
forms filed against First Reports and the number of Notice of Controversy forms
filed against the claims for compensation); the Board monitoring all Notice of
Controversy forms filings because it adds resources to be applied to those Notice
of Controversy forms; the report implying entities are excessively controverting
claims when in fact all they are doing is protecting their rights under the Act; the
Legislature’s request that the Board look at




                       Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                       18


                              NEW BUSINESS CONTINUED
                DRAFT 2005 ANNUAL COMPLIANCE REPORT CONT’D

            Discussion Continued:
            companies unreasonably denying cases; the Board not reaching a consensus on
            what is and is not reasonable; whether the Board should remove those cases
            from its data wherein there is a First Report and the carrier filed a Notice of
            Controversy form, but the employee did not receive workers’ compensation
            benefits and/or returned to work because there is no claim (Staff stated it is
            measured because it is a disputed claim, which the Board monitors in order to
            determine what resources are necessary and commented that it does not mean
            there is nothing happening on the case); data that the Monitoring, Audit &
            Enforcement Division is presenting to the Board for review and action; the
            Board needing resources to handle incoming Notice of Controversy filings; the
            inference that could be drawn from the calculation is that it is more work for the
            Board; possibly eliminating that calculation; companies filing a Notice of
            Controversy forms within 14 days because of the penalties in place for not filing
            the form in a timely manner and the companies who are currently working under
            a Corrective Action Plan (Staff reported that Royal Sun Alliance, St. Paul,
            Travelers, CAN, Chubb & Son, Ace/Esis, Gallagher Bassett, Crawford &
            Company, Cambridge Integrated Services, Hartford, and Georgia Pacific are all
            working under a Corrective Action Plan because of their poor compliance. Mr.
            Levesque explained to the Board that a number of the companies are Third-party
            Administrators and advised the Board that the Monitoring, Audit & Enforcement
            Division is working with the companies in an effort to improve their overall
            compliance).

            Rodney Hiltz MOVED TO ACCEPT THE 2005 ANNUAL COMPLIANCE REPORT;
            Joan Kirkpatrick seconded. MOTION PASSES 7-0.

Director Monfiletto departed the meeting at approximately 12:40 p.m.

      3)    Legislative Policy: Chairman Dionne provided Board members with information
            on the Board’s Legislative Policy in its By-Laws regarding legislation submitted by
            the Board and proposed by the Legislature
            and Governor.




                                   Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                             19


                    NEW BUSINESS CONTINUED

WORKERS’ COMPENSATION BOARD BY-LAWS REGARDING LEGISLATION
Staff will assist the Board in developing an appropriate and effective response to
proposed legislation which is of interest to members and the agency. A majority vote of
the membership of the Board is required to take a policy position on proposed
legislation. The result of the vote on the proposed legislation shall be part of the Board’s
testimony on the proposed legislation. The agency will provide technical assistance to
the Legislature, if required.

                                    WCB LEGISLATION

Staff will guide a bill through the legislative process and take a policy position on
proposed legislation, and provide technical assistance and testimony, if required.

                              GOVERNOR’S LEGISLATION

Staff will follow and guide a bill through the legislative process and take a policy position
on proposed legislation. Also, provide technical assistance and testimony if required.

                             LEGISLATURE’S LEGISLATION

Follow a bill through the legislative process and take a policy position on proposed
legislation, based on WCB majority support for that action. And to provide technical
assistance and testimony, if required.

Discussion:
Directors and Staff discussed staff support on legislative items being based on
Board action (In response to Director Mingo’s inquiry as to why a position
would be taken on legislation without Board guidance, Chairman Dionne stated
you need a Board vote to take a policy position on legislation and noted you
need a Board vote on legislation proposed by the Legislature, and that in regard
to the Governor’s legislation that there may be a conflict because the Chair is also
a Cabinet member, which requires the Chair to take a policy position on behalf of
the Governor on matters relating to State government. Mr. Dionne stated the
Board may want to amend the above policy to state that if it takes a majority vote
not to support a policy position of the Governor that staff relay both the Board’s
position and the Governor’s position to the Legislature);
Directors and Staff’s deliberations on making staff aware of the policy and
providing the Board with copies of documents presented to the Legislature to
keep apprised of legislative activities.

                         Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                  20


                         NEW BUSINESS CONTINUED
4)   Worker Advocate Program (Attorney Referrals): Chairman Dionne informed the
     Board that he met with Senior Staff Attorney L.L.Klein to discuss cases referred by
     Worker Advocates to attorneys and presented Board members with a proposed
     policy on the matter.

                  PRESENT WORKER ADVOCATE DIVISION REFERRAL POLICY

     Presently, when an Advocate determines that a particular employee should be represented
     by private counsel, the Advocate simply suggests to the employee that they consult with
     private counsel. This may happen, for example, under the following situations:

     1.     Complex cases that require substantial time and financial resources (due to the need
            for independent exams, depositions, numerous witnesses, voluminous medical
            records, complex medicals, etc.) to litigate such as stress claims and discrimination
            claims. And, for example, claims involving Third-party Administrators;
     2.     Cases that have a high lump-sum settlement value or that require a structured
            settlement;
     3.     Cases with high lump values, but which involve the Medicare set aside requirements;
     4.     Cases in which a Worker Advocate determines, for whatever reason, that they are
            not the best qualified person to handle the claim.
     5.     Sometimes workers are upset because they do not feel that the Advocates give
            their cases enough time or attention. Worker Advocates will tell injured workers
            that are unhappy with the Worker Advocate Division Representative that they are
            free to consult with outside counsel.

     The above list is not all inclusive. Advocates exercise independent legal judgment. When, in
     their best judgment, it is in the best interest of an injured worker to be represented by
     outside cousel, they will make the referral. Generally, Worker Advocates do not name an
     outside attorney unless asked by the injured worker, in which case they are free to make
     specific referrals as the Advocates know which lawyers will represent the employee’s
     interest best. However, there is no policy forbidding them from naming an attorney. For
     example, they might make a specific referral, without being asked, when it is clear that the
     injured worker would otherwise do nothing (for example, a poorly-educated individual might
     be afraid to even ask for the name of an attorney). Telling Advocates that they cannot give
     out the names of outside counsel has serious repercussions for injured workers.




                              Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                           21


                   NEW BUSINESS CONTINUED
       WORKER ADVOCATE REFERRAL POLICY CONT’D

Discussion:
Directors and Staff discussed one of the Worker Advocates referring an injured
worker to an attorney with experience with the pre-1993 Act but limited
knowledge with the post-1993 Act and the injured worker contacting the Worker
Advocate to discuss the information she was given to by the attorney because it
conflicted with information the Board provided to her (Staff noted the
information may have been correct for pre-1993 cases); Director Koocher’s
concerns with the Advocates referring injured workers to certain attorneys and
noted he is aware of some attorneys whose names are not on the list and
inquired of staff if the Board is liable for referring a case to a specific attorney;
the above policy evolving over time; several plaintiff attorneys whose names are
not on the list; the problem with referring an employee to an attorney who is
then later charged with negligence and malpractice, and whether the Board
would be liable in some way; developing a policy that takes into account issues
such as bias and conflicts; returning to the prevail standard; the importance of
making sure injured workers are represented; the Board not having a list of the
attorneys Worker Advocates refer people to and a list being developed by
support staff person in the Worker Advocate Program at the regional office in
Portland, for personal reference only (Senior Staff Attorney Klein informed the
Board that a clerical employee in the Portland office created a list for her own use
and state the Worker Advocate Division does not distribute a list to the public
containing the names of attorneys who handle workers’ compensation cases);
Worker Advocates being overworked and the Worker Advocate Program being
understaffed, and supplying additional resources to the Division to make sure
they have the staff members available to do an adequate job, without having to
refer cases; allowing Worker Advocates the discretion as to the handling of their
large caseloads and to determine how best to handle the complex cases; asking
the General Counsel to research the issue of whether the Board would be held
liable in a case that was referred to




                       Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                22


                        NEW BUSINESS CONTINUED
             WORKER ADVOCATE REFERRAL POLICY CONT’D

      Discussion Continued:
      legal counsel if the attorney is later found to be negligent in some way; the
      Board’s mission statement; Public Participant J.Greenier’s remarks regarding his
      belief that the playing field has been uneven since the Legislature removed the
      prevail standard from the Maine Workers’ Compensation Act, which lead to
      employers continuing to be represented by attorneys and injured workers, with
      post-1993 dates of injury, being represented by a Worker Advocate; those law
      firms that represent employees and employers and how their name would appear
      on a list; developing an equitable list of names of attorneys that can be provided
      to injured workers; the risk of a conflict of interest in some cases being referred
      by Worker Advocates and researching that matter; employees having the
      discretion to hire whomever they choose for an attorney; employees being
      responsible for their own attorney fees under the Maine Workers’ Compensation
      Act of 1992 and postponing further deliberation on this item until after the
      General Counsel has had an opportunity to research the issues raised by Board
      members.

                           GENERAL COUNSEL REPORT
                                 CONTINUED
4)    Pending Litigation Continued (Hannaford Brothers v. Workers’ Compensation
      Board): At the request of General Counsel Rohde, Board members gathered in
      executive session to discuss the case of Hannaford Brothers v. Workers’
      Compensation Board.

      Joan Kirkpatrick MOVED TO ENTER EXECUTIVE SESSION TO DISCUSS
      PENDING LITIGATION IN THE CASE OF HANNAFORD BROTHERS V. WORKERS’
      COMPENSATION BOARD AND TO DISCUSS A SETTLEMENT OFFER; John
      Cooney seconded. MOTION PASSES 6-0.

Directors gathered in executive session at 1:05 p.m.; returned at 1:25 p.m.




                            Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                  23


                         NEW BUSINESS CONTINUED
              WORKER ADVOCATE REFERRAL POLICY CONT’D

      Gary Koocher MOVED TO AUTHORIZE THE GENERAL COUNSEL TO DEFEND
      THE BOARD IN THE CASE OF HANNAFORD BROTHERS V. WORKERS’
      COMPENSATION BOARD; Joan Kirkpatrick seconded. MOTION PASSES 6-
      0.

                                 ADJOURNMENT
      Gary Koocher MOVED TO ADJOURN; James Mingo seconded. MOTION
      PASSES 6-0. The meeting formally adjourned at 1:28 p.m.

Director Koocher departed the meeting at 1:29 p.m.
                ---------------------------------------------------------------

                            PUBLIC FORUM
                                  1:32 p.m. to 2:33 p.m.

INTRODUCTION

Chairman Dionne, after calling the Public Forum to order, read aloud the procedures
the Board will follow today and inquired of attendees if they have would like to address
any issues with the Board today.

PUBLIC COMMENTS / DISCUSSION

Board Members, Staff and Public Participants discussed Ms. Greenier’s assertion that the
Board’s July 11th minutes do not reflect her strong objection to a 3% pay raise for the
Board’s senior managers; Ms. Greenier’s July 25th request for verbatim notes of the
Board’s deliberations in the case of Shaver v. Poland Springs Bottling Company (Ms.
Greenier informed Board members that the
July 11th minutes do not indicate her strong objection to the salary increase. And,
General Counsel Rohde stated that a transcript has been prepared in verbatim format of
the Board’s proceedings in the Shaver case on July 25th, which parties




                              Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                 24




               PUBLIC FORUM CONTINUED
PUBLIC COMMENTS / DISCUSSION CONT’D

can request from the Board); Director Hiltz’s remarks regarding the Board receiving
draft minutes of a prior meeting, at a following meeting, for review and approval at
which time the Board can make revisions, if needed, prior to approving the minutes for
public distribution (In response, Ms. Greenier stated Board minutes are not available to
the public prior to approval. And, Staff informed Mr. and Mrs. Greenier that the Board
does not distribute its draft minutes to the public until after it approves them. Mr.
Greenier asserted he has seen draft minutes on the table for public viewing at board
meetings and alleged that one set of minutes incorrectly indicated that he had made a
comment when in fact his wife had actually made the comment. Mr. Greenier asked
that members of the public have access to draft minutes if they have spoken at a board
meeting to ensure the minutes accurately reflect the public’s comments. Mr. Greenier
also alleged that the minutes do not accurately reflect the statements made at a board
meeting and that they sometimes distort what is actually said and what has taken place
at the meeting. Director Hiltz stated minutes are not a transcript of a proceeding, which
is what he would prefer with respect to the Board’s minutes and stated that because
staff have to paraphrase what has happened at a meeting that the Board is asked to
review and revise them, if needed, to make sure they mirror conversations that took
place for historical purposes, and remarked that he does want to see what the public
says in the Board’s minutes. Mr. Greenier also alleged that some Public Participants
have had an opportunity to adjust the Board’s notes and stated he was at a meeting in
Augusta and draft minutes were placed on the table for the public and noted some
entities publish their draft minutes); Ms. Greenier’s remarks regarding the discussion
she had with Executive Director Dionne in July regarding the replacement of the United
States flag in the Board’s conference rooms (Mr. Dionne stated that staff has determined
the Board’s flags in its hearing rooms are adequate and should not be replaced. Mr.
Dionne advised Ms. Greenier that the flag is not an issue for a Public Forum. In
response,
Ms. Greenier stated that the flag in the Board’s offices do not afford injured workers
their rights because it is a military flag. General Counsel Rohde
advised Mrs. Greenier that the rights an injured workers has are afforded




                             Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                 25




               PUBLIC FORUM CONTINUED
PUBLIC COMMENTS / DISCUSSION CONT’D

to them under the Maine Workers’ Compensation Act, regardless of the flag.
Mr. Greenier pointed out that the gold-trimmed flag is not the American flag and is
actually a flag used by the United States military); the penalty impositions in Section
324(2) and 205(3) (Mr. Greenier inquired of staff what the difference is between the two
sections and stated he understands that Sec. 205(3) requires $50.00 a day be added and
paid to the injured worker for each day, over 30 days in which benefits are not paid,
and noted the cap is a maximum of $1,500 but that the violation in Sec. 324(2) is a
harsher offense and that $50.00 a day goes to the employee to whom compensation is
due and the remainder paid to the Board for placement in its Administrative Fund. Mr.
Greenier noted that the Board can impose a penalty of up to $200.00 a day for non-
compliance and remarked that employee does not get the benefit of the penalty
imposed under Sec. 324(2), even though it is a worse offense. In response, Staff stated
the employee may or may not get the $50.00 and informed Mr. Greenier that the
difference between those sections is that Sec. 205(3) says $50.00 a day must be added
and paid so there is no discretion as to what is paid and commented that each day late it
has to be $50.00 and that Sec. 324(2) says “up to $200.00 for each day can be assessed.”
Mr. Rohde stated that the penalty under Sec. 324(2) can be $200.00, $50.00 or $1.00 per
day and noted that some discretion has to be applied under Sec. 324(2) (a) where no
discretion is allowed. Mr. Rohde reported that the penalty imposition under Sec. 324(2)
is much greater than it is under Sec. 205(3) because there is a $1,500 cap in Sec. 205(3).
Mr. Rohde noted that if you weigh the potential seriousness based on a potential
penalty than the answer would be yes because it can be higher than $1,500 under Sec.
324(2) and it can be no more than $1,500 under Sec. 205(3). Mr. Greenier noted that the
same issue has to go under Sec. 205(3) if there is no ongoing dispute, but that under Sec.
324(2) it pertains to an ongoing dispute and remarked that if a company does not honor
a Board decree for years and that it could not happen under Sec. 205(3) because you are
limited to 30 days of penalty and it is capped at $1,500 and that under Sec. 324(2),
if it worse because of an ongoing dispute, and commented that even though an
employee can only receive $50.00 a day that the Board has the discretion of




                             Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                     26




                   PUBLIC FORUM CONTINUED
    PUBLIC COMMENTS / DISCUSSION CONT’D

    setting the penalty at a higher amount and stated that he believes the employee’s rights
    are not being taken into account because it is more of a violation. In response, Director
    Cooney noted that other than a more stringent enforcement of the provision of the Act
    that Mr. Greenier is asking for a legislative change.
    Mr. Greenier noted that the penalties under the two sections belong to the injured
    worker and commented that if the Board was not getting any monies that would be one
    thing, but that the Board has the discretion of assessing penalties and noted that
    penalties stop abuse and remarked that the employee should also be entitled to the
    $50.00 a day under Sec. 324(2). In response, General Counsel Rohde stated that
    currently the language says up to $200.00 a day for
    non-compliance and that in subparagraph 1 it says that the first $50.00 is paid to the
    employee and asked Mr. Greenier for clarification if he is asking that the statute be
    amended to state the employee will receive $50.00 day in Sec. 205(3). Mr. Rohde
    explained that the first $50.00 per day must be paid to the employee and stated that he
    is hearing that under Sec. 324(2) that there should be a minimum penalty of $50.00 per
    day and that anything above that is discretionary with the Board.

Directors Cooney and Mingo departed the public forum at 2:02 p.m.

    PUBLIC COMMENTS / DISCUSSION CONT’D

    Board Members, Staff and Public Participants discussed Ms. Greenier’s remarks regarding
    her request at the last public forum regarding the delays within the Board’s Abuse
    Investigation Unit and asked staff for clarification on the caseload figures ( Mr. Rohde
    noted that the distinction between the earlier years and later years is that at the time
    you see an increase in the numbers the Board went to an automated format in terms of
    determining whether a First Report of Injury is late and commented that it has
    generated hundreds of cases and that since that time there are other cases the Board has
    begun looking at and explained that it is the cause for the increase in complaints. Mr.
    Rohde reported




                                 Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                 27




               PUBLIC FORUM CONTINUED
PUBLIC COMMENTS / DISCUSSION CONT’D

the number of cases has been relatively consistent with the exception of cases that fall
under Sec. 360(1) because of the automated process which is now catching late First
Reports and noted an increase may be seen with cases that also fall under Sec. 324(3)
because of the automated process now in place for picking up on those cases in which
employers do not have required coverage. Mr. Rohde noted that the more aggregious
offenders are working under a Corrective Action Plan to get their compliance in line
and that as far as employers without coverage that there will be always be a certain
number that do not and that the Board will continue to enforce those penalties. Ms.
Greenier stated that companies are violating the Act over and over. Board Member
Hiltz’s remarks that there may be an increase in the number of complaints because of
the Board’s electronic process and noted the Board is doing more than it has in the past
with increased identification and increased action, and commented that it will take
some time to fix the problems. Mr. Minkowsky informed Ms. Greenier that the Board
has referred 18 insurance companies to the Maine Bureau of Insurance for
questionanable claims handling practices and commented that two companies willfully
entered into a Consent Decree and admitted they violated the Act and stated the Board
has also sought revocation of an adjuster’s license who works for ESIS, and that the
Board is taking care of Sec. 205(3) violations by way of
the Compliance reports and Reconciliation reports. Director Hiltz advised
Mr. and Mrs. Greenier to apprise the Board of those areas where things are not moving
in the right direction and thanked them for coming to today’s session); Ms. Greenier’s
remarks regarding injured workers being uncomfortable with appearing at a Board
public forum and talking about their experiences with the workers’ compensation
system; asking Assistant General Counsel J.McNitt to prepare a report on the activities
of the Abuse Unit, which should show that the Unit is processing a large number of
cases; the MAE Program working hand-in-hand with the Abuse Investigation Unit in
regard to abuse and enforcement; the significant work the MAE Program has done in
setting benchmarks and referring insurance companies for poor compliance; Mr.
Greenier’s request for information on the cases completed; Ms. Greenier’s assertion that
in some cases an Order has been issued and is not being honored by the parties in a
timely manner; how many companies are not complying with Board Orders (Mr.
Greenier alleged




                             Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                                       28




                    PUBLIC FORUM CONTINUED
    PUBLIC COMMENTS / DISCUSSION CONT’D

    that there are numerous Sec. 361 complaints pending in which an Order was rendered
    but was never paid, and commented that the money is owed to the State of Maine and
    stated that in those cases in which an employee receives a portion of the penalty that he
    or she knows when it is paid. Mr. Greenier also pointed out that some penalties are
    quite large and that if they are not paid they should be referred to Superior Court. Mr.
    Dionne noted that the Board has requested a procedure to collect unpaid penalties via a
    private attorney or the Attorney General’s office and stated he is awaiting a
    recommendation on how best to proceed. Mr. Rohde reported there are not many Sec.
    360(1) penalties that have gone unpaid but that there are some Sec. 324(2) cases that
    have not been paid) and Ms. Greenier’s suggestion that the Board begin its meetings on
    time.

Director Hiltz departed the meeting at 2:18 p.m.

    PUBLIC COMMENTS / DISCUSSION CONT’D

    Directors, Staff and Public Participants discussed Ms. Greenier’s inquiry as to how
    many attorneys have been disciplined by the Board (Mr. Rohde reported the Board does
    not have the authority to deal with complaints against attorneys. In response, Mr.
    Greenier stated that the Board of Overseers of the Bar has stated otherwise. Mr. Dionne
    advised Mr. and Mrs. Greenier that the Board is not aware of any authority it has in
    regard to disciplining attorneys. Director Kirkpatrick stated the only option for filing a
    complaint against an attorney is with the Maine Bar Association. Mr. Dionne stated
    that if they are advised that again to ask for a statutory citation for the Board to look at);
    Ms. Greenier’s assertion that the Board’s minutes of May 25th exclude remarks made by
    Attorney James Case regarding $200 a day fines; Ms. Greenier’s suggestion that the
    Board develop a process to refer cases to the Audit Division for those cases
    involving more than one Complaint (Staff explained that there are numerous Board
    Orders, which have not been complied with and noted that a standard operating
    procedure is being developed for Auditors to check with the
    Abuse Investigation Unit to see how many Petitions of Forfeiture, if any,
    are pending against an entity); Mr. Greenier’s assertion that the employees




                                   Minutes of Board of Directors August 22, 2006 Business Meeting and Public Forum
                                            29




               PUBLIC FORUM CONTINUED
PUBLIC COMMENTS / DISCUSSION CONT’D

working for his former employer are afraid to file a workers’ compensation claim for
fear of being terminated, and are being told to file a claim under their health insurance
policies as opposed to filing a workers’ compensation claim; Chairman Dionne’s
instructions to Mr. & Mr. Greenier to bring supporting evidence to the Board on issues
they would like to address with the Board so that it can take action (Mr. Dionne stated
the Board cannot act on general statements); Mr. Greenier’s remarks regarding the
Board’s action on the case of Shaver v. Poland Springs Bottling Company and
addressing the issue of discrimination; Ms. Greenier’s suggestion that the Board require
companies to prove why they are controverting cases (Mr. Dionne pointed out that the
Monitoring, Audit & Enforcement Division is addressing those entities that are
controverting an unreasonable number of cases, such as Wal-Mart. Mr. Minkowsky
explained that Maine is one of the few states in the country that actually measures the
number of cases paid within the first 14 days and is the only state in the Country that
identifies the entities by name and reported that the Board holds entities accountable
and that the information will continue to be presented to the Board through the
compliance report and stated it is up to the Board to decide what is reasonable or
unreasonable) and Mr. Greenier’s assertion that some employees don’t even know what
a Statement of Compensation is because they have never received one, even though they
are represented.

THE PUBLIC FORUM ENDED AT 2:33 P.M.

                                        # # #

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:18
posted:11/16/2011
language:English
pages:29