September 27, 2000

Welcome and Opening Remarks

Rachel S. Gilbert, Chairman of the Industrial Commission, opened the meeting by welcoming Committee members. She introduced fellow Commissioners Jim Kile and R. D. Maynard, Commission Director Gary Stivers, and Commission Secretary Pat Ramey. Committee members introduced themselves and briefly described their professional experience. Commissioner Gilbert gave historical information about the Industrial Commission and its advisory committees over the years. She then introduced and turned the meeting over to Committee Chairman Jack Barrett.

Committee Chairman Jack Barrett has 42 years of experience in the field of workers' compensation. Although not an appointed member, he participated in an advisory committee headed by E. B. Smith in 1971, the year the Workers' Compensation Law was recodified. The law was recodified primarily because workers were receiving practically nothing in benefits. Members of the committee included Sam Kaufman, George Greenfield, Larry Sirhall, Sr., Glen Coughlan, and other appointed individuals.

Committee Operational Processes

The role and process of the Advisory Committee were reviewed. Chairman Barrett pointed out that the 1971 recodification committee presents a good example of how conflicting interests can work together to reach agreement on how the workers' compensation system can be improved for the benefit of everyone. People should be able to compromise. Mr. Barrett expressed the hope that the current Advisory Committee will move forward with the understanding that its function is to make the workers' compensation system better for everyone.

Chairman Barrett reviewed the Vision and Mission Statement from the Charter. The primary mission of the Advisory Committee is to provide assistance and advice to the Industrial Commission on the Idaho workers' compensation system. Its function is not primarily to draft legislation, although it may be called upon occasionally to review legislation. Its primary function is to discuss issues and make recommendations to the Commission. He called on members to emulate the 1971 advisory committee, which, in spite of great differences in background, was able to come to consensus on issues and move forward. They did not come to advocate their own causes or agendas; they came together for the greater good.

The Chairman asked if there were any recommendations for amendments to the Charter. As no amendments were suggested, he advised members that the Committee could recommend changes any time they believed them to be necessary.

Agenda

Mr. Barrett indicated there would be four meetings in the first year, depending on what issues arise. Gary Stivers will make up the agenda with the advice and consent of the Committee Chairman and the Industrial Commission. Members desiring to have issues placed on the agenda need to provide the ideas and materials to Mr. Stivers at least 10 days prior to the meeting so they can be distributed and reviewed in advance. Members should come to the meetings prepared to discuss the issues that are on the agenda. Issues that arise during meetings but no one is prepared to discuss them should be carried over to the next agenda.

Committee Reports

Members are encouraged to share related information they obtain between meetings. Members wishing to share information are to notify Gary Stivers of the topic and submit background information so the topic can be placed on the agenda.

Presentations

If there are to be presentations on issues, let Gary Stivers know and tell him the amount of time that will be required so a schedule can be made in advance of the meeting. If a member has a constituent who has a real concern, the constituent can be brought in to make a presentation with advance notification.

Identification of Issues

Issues to be addressed by the Committee may come from the Commission, Committee members, or interested parties. The issues are to be presented along with background information in advance of the meeting. Committee members should review all the materials prior to the meeting so everyone is prepared to address the issues.

Role of Consensus

Consensus is not a majority vote. The goal of the Committee is to be a forum for the improvement of the workers' compensation system as a whole, rather than an advocate on individual issues. This will make consensus possible. Individual members may not agree entirely with others in the group, but everyone looks for common ground on which to base a recommendation. One of the concerns about the Governor's advisory committees of the recent past was the vote. It polarized the members and they did not achieve much. This Committee was not created to advocate on issues.

Concern was expressed about the Industrial Commission taking an active role in reviewing legislation in light of its quasi-judicial function. Discussion was held. Chairman Barrett said he did not have a problem with the Committee reviewing certain legislation, but that is not its primary function. The Committee can be very selective about what it reviews and can decline to review what it considers inappropriate. The Industrial Commission's administrative role is so broad under the law that Mr. Barrett opined it would not present a conflict for the Committee to involve itself and give advice about legislation to the Commission. The Committee should also advise the Commission on the promulgation of rules.

Subcommittees

Subcommittees may be created to gather historical and background information and material on issues with which most people are not familiar. The subcommittee will study the information and make a written recommendation to the Committee.

Public and Agency Comment

Public input is important for this kind of Committee to function properly. Meetings will include opportunities for comment from the public. Issues coming from the public may be presented to the Committee through a member or through the Commission, and the Committee will decide as to whether to address the issue presented or not.

Draft and Final Recommendations

After the Committee addresses issues a written recommendation will be made to the Commission. If the Committee reaches consensus on an issue, it is incumbent on all members to support the final recommendation as the best recommendation the Committee can make. If the Committee cannot reach consensus, the final recommendation will contain information as to why consensus cannot be obtained and should at least identify those parts of the issue on which the Committee can agree.

Mr. Barrett emphasized again that in order to fulfill the Committee's mission, members would have to set aside personal and professional agendas and work toward solutions that will ultimately improve the workers' compensation system for everyone.

Review of Advisory Committee Charter

No comments were received regarding Articles One through Four. Some comments made on Article Five, "Membership." The comments were generally regarding the number of members from the insurance industry and employers as compared to those from labor. It was suggested that as long as the Committee works toward consensus, the current make-up should be viable. However, if the Committee returns to a voting process, the imbalance will probably require adjustment. The Chairman indicated that the number of representatives from labor and industry might have to be addressed at a later date and that membership could be adjusted as time goes on if it is felt this influences the Committee.

Section 6 provides for special members from professional organizations, which could include a physician representative if the issues require such representation. The State Insurance Fund and the Industrial Special Indemnity Fund are specifically included in Section 6.

Overview of the Industrial Commission

Commission Director Gary Stivers gave an overview of the structure and functions of the Industrial Commission. These functions are outlined in the Commission's Annual Report. The discussion included an explanation of the Commission's administrative, regulatory, safety, and judicial responsibilities in the workers' compensation area; its judicial review of cases on appeal from the Department of Labor; and its administrative and judicial role in the Crime Victims Compensation Program.

The Commission's primary funding is from a tax on premiums paid for workers' compensation insurance. This funding supports the workers' compensation program and the safety program, which is administered through the Division of Building Safety. The Crime Victims Compensation Program is funded entirely by fines assessed on misdemeanor and felony convictions at both the local and the federal level. Funding for review of unemployment appeals comes from the Idaho Department of Labor.

Chairman Barrett followed up by saying that Idaho is one of the few remaining states that does not have an uninsured employer program. Mr. Barrett believes that creating a fund to compensate injured workers whose employers are uninsured is one of the most important issues the Committee will consider. Several sources of funding were suggested and discussed.

Judicial Process

Commissioner Kile gave an overview of the Commission's process for adjudicating disputes. Three years ago the Commission received funding for three law clerks. These clerks have provided invaluable assistance in developing a new system that helped the Commission produce decisions more efficiently and reduce the backlog. It is now taking an average of 35 days from the date the final brief is filed until a decision issues. The Commission is also currently meeting all the federal guidelines for timeliness on issuance of appeals under the Employment Security Law.

John Greenfield inquired as to whether any indexed publication of Industrial Commission decisions would be initiated now that the publication of decisions has ceased; indexed Commission decisions are no longer available now that Myrna Sasser has retired. The only other publications available are on CD Rom or through the AccuScan service provided by Tucker & Associates. It was suggested that the Committee discuss this issue at some future date.

Committee Role in Review of Proposed Legislation

Chairman Jack Barrett stated that this issue had already been discussed at length. Commissioner Maynard said if you have any issues on which you have legislation that is going to be introduced and you want the Committee to look at it, get something in writing to the Committee as early as possible. The Committee will then choose which issues it will review. Mr. Barrett stated that there would only be one more meeting prior to the next legislative session, and that would be some time in December. If there is any legislation, it should be presented prior to that meeting. No meetings will be scheduled at the last minute.

Repeal of Asbestos Accreditation Rule

The Industrial Commission's Deputy Attorney General, Blair Jaynes, explained the rule and provided historical and legal background information. The rule (IDAPA 17.04.05) was originally promulgated pursuant to an Executive Order published by the Governor in 1989 and renewed in 1992. The Executive Order has now expired and no enabling legislation was passed by the state. The rule is narrow in scope. It provides only for the accreditation of asbestos professionals who work on asbestos abatement projects in elementary and secondary schools. They are not strictly safety rules as provided for in Idaho Code § 72-720 - 722. In addition, the federal Environmental Protection Act requires the same kind of accreditation for asbestos professionals and its rules apply because Idaho has not adopted the enabling legislation for a state plan. The Commission therefore feels the rule is superfluous, has no statutory authority, and should be repealed.

The issue was presented to the Committee for consideration and a recommendation. After discussion, it was the consensus and recommendation of the Committee that the Commission proceed with the repeal of IDAPA 17.04.05, Accreditation of Asbestos Professionals Employed in School Projects, under the Administrative Procedure Act.

Agreement on Extraterritorial Coverage

The Industrial Commission's Employer Compliance Bureau Chief, Christi Simon, provided background information on reciprocity agreements in general and more specifically on the agreement the Commission proposes to enter into with the State of Montana and other surrounding states. It was suggested that rules be promulgated for employers to follow in order to apply for certification of extraterritorial coverage. Chairman Barrett suggested an amendment. A question arose as to whether it made a difference if the employer was covered by the State Insurance Fund, a private insurer, or was self-insured. It was agreed that it should not make a difference. Alan Gardner inquired as to whether Montana defines surety and insurer the same as Idaho.

The issue of whether the Commission should proceed with the execution of the agreement with Montana and enter into similar agreements with other neighboring states was presented to the Committee for consideration and a recommendation. The consensus was that the amendment recommended by Chairman Barrett should be incorporated into the agreement with Montana and that the Commission should proceed with the execution of that agreement and with negotiations for agreements with other states as well. The final wording of the agreement should assure that all insurers, including the State Insurance Fund and self-insured employers, would be covered equally.

Projections of Premium Tax Receipts for Industrial Commission

The Industrial Commission's Financial Officer, Don Robbins, presented an overview of the Commission's financial status. He advised the Committee that the Commission is concerned about declining premium tax revenues. Revenues decreased by nearly 13% in FY 1999 and FY 2000. If revenue from premium taxes continue to decline at the projected rate, the Commission's cash balance will be seriously affected. Expenditures have been conservative, increasing only about 5% over the past two fiscal years. The Commission provides approximately $1 million annually to fund the Division of Building Safety, which administers the Commission's safety rules for places of public employment, logging, boilers and pressure vessels, elevators and escalators.

Discussion was held regarding the results of and some possible solutions for the Commission's financial dilemma. After discussion, Chairman Barrett recommended that the issue be placed on the next agenda. The Committee asked the Commission for additional financial projections based on different scenarios. The information will be distributed to Committee members no fewer than ten days prior to the next meeting.

Proposal and Prioritization of Issues

The following items were suggested for the agenda for the next meeting:

1. Review of Industrial Commission financial picture

2. John Greenfield - Report on contact with Laura Pershing about entering Commission decisions through Westlaw

3. Review of proposed legislation

4. Uninsured employers fund

Discussion was held regarding the issue of an uninsured employers fund. Chairman Barrett suggested assigning a subcommittee to look at other jurisdictions, how they fund uninsured claims, and how those funds operate. The subcommittee's findings can be presented to the Committee to determine whether such a project would work in Idaho. Then legislation could be drafted. The purpose and the result of having such a fund is important to everyone in the workers' compensation system. Mr. Barrett will obtain some information about uninsured funds in other jurisdictions and provide it at the next meeting. A subcommittee can then be formed to review the information.

Discussion was held regarding proposed legislation. Dawn Justice, representing the Idaho Association of Commerce and Industry, reported that legislation was being drafted to exempt small faith groups from workers' compensation coverage. After discussion, the Committee determined that unless such legislation was brought specifically to the Committee and it was in written form, no discussion would be held.

Next Meeting

The next meeting of the Advisory Committee on Workers' Compensation will be held Tuesday, December 5, 2000, beginning at 9:30 a.m.