Industrial Commission's Advisory Committee

On Workers' Compensation

 

Minutes

March 6, 2001

 

Members Present:                                                                             

Jack Barrett                              
Dave Whaley                            
Tracy Whigham                        
Susan Dokken                                      
Dave Gribskov                         
Alan Gardner                           
John Greenfield                         
Jim Nelson
Steve Millard                            
Keith Hutchinson

Members Absent:

Rian VanLeuven
Dan Obray
Bob Shosted

Approval of Minutes

It was moved and seconded that the Minutes of the December 5, 2000, meeting be approved as written.  The motion carried by unanimous consent.

 

Committee Reports

 

Gary Stivers, Director of the Industrial Commission, reported on the status of proposed legislation. 

 

House Bill 98A proposing the amendment of Idaho Code § 72-517, Cooperation With Other Agencies, is being held in the House Commerce and Human Resources Committee, and it is doubtful that the bill will pass this session.  Several concerns were expressed by legislators.  One was that the language allowed the Commission, "in its sole discretion," to decide what information could be released to other governmental entities.  The bill was amended to remove the phrase.  Another concern was the lack of reference to the Public Records Act.  The bill was amended to add the reference.  The next concern was that legislators did not want information to be released to federal agencies, such as OSHA or the IRS. 

 

Because the Commission receives numerous requests for information from other governmental entities in its day-to-day operations, Chairman Barrett suggested that another bill be presented during the next legislature.  The Commission should make a record of the problems it faces with requests from other governmental entities over the next year and the Advisory Committee will look at it again later in the year.

 

House Bill 225 amending Idaho Code § 72-438, Occupational Diseases, is on third reading in the House.  The amendment changes the reference from hepatitis B to hepatitis viruses and adds tuberculosis to the list of occupational diseases.

 

House Bill 306 increasing Industrial Commissioner salaries 4.5% has passed the House and is proceeding to the Senate.  This bill just includes the Industrial Commission and the Public Utilities Commission.  The Tax Commission presented a separate bill.

 

House Concurrent Resolution 22 proposing a study of the Workers' Compensation Law is being held in the House Commerce & Human Resources Committee.  Mr. Barrett suggested that the Advisory Committee might wish to participate in this process.  The question was raised as to why Representative Ridinger had sponsored a bill to study the Workers' Compensation Law.  It was suggested that the representative be invited to the next Advisory Committee meeting so he can understand what the Advisory Committee does and how he can refer workers' compensation issues to it rather than to a subcommittee of the legislature.  Mr. Whaley indicated he has spoken to Representative Ridinger and believes he would be receptive to this idea.

 

House Bill 237 amends the Uniform Commercial Code (UCC) to prevent workers' compensation benefits from becoming assignable.  The UCC originally did not exempt workers' compensation benefits from claims of creditors.

 

Presentations

 

Lonna Gray, Manager of the Industrial Special Indemnity Fund, presented the Fund's annual report.  She responded to questions from the Committee.  Discussion was held regarding the effect of House Bill 218, which provides that the Attorney General will represent the Industrial Special Indemnity Fund.

 

The presentation regarding Industrial Commission safety programs was deferred until a later meeting, due to time constraints.

 

Consideration of Issues

 

Uninsured Employer Fund - Chairman Jack Barrett reported that information is being gathered to present to the subcommittee.  Lonna Gray, Manager of the Industrial Special Indemnity Fund, will attend the Western Association of Workers' Compensation Boards meeting in June 2001 and will gather information from other western states.  In addition, Alan Gardner is obtaining information from Utah.  After the information is received and distributed to subcommittee members, meetings will be scheduled.

 

Claims Adjusting/ Bill Review Issues - Gary Stivers gave an overview of the information received by the Commission regarding claims adjusting problems.  Chairman Barrett suggested that a subcommittee be formed and special members be called in to serve on the subcommittee in order to hear all sides and ultimately to make a recommendation to the Advisory Committee as to how the problems can be resolved.  The primary problem appears to be that claims are being adjusted outside the state, often by entities that are unknown to the Industrial Commission.

 

Mr. Stivers indicated he had received calls from numerous individuals, including defense attorneys, medical management companies, third party administrators, and claimants.  The issues on which they express common concern include the following:

 

            1.         Medical management of claims outside the state;

            2.         Local adjuster with no authority on medical issues;

            3.         Multiple third party adjusters for one insurance company;

            4.         Out of state check writing.

 

Chairman Barrett invited comment on these issues.  Committee members indicated they believed the problem to be much larger than stated.  It has been increasing exponentially over the past several years.  Insurance companies at times appear to be using resident adjusters as a front, while the real claim adjusting functions are carried on in another or several other states.  It was agreed that these kinds of activities were against the intent of the Idaho Workers' Compensation Law. 

 

Following public comment, Mr. Barrett appointed Alan Gardner, Dave Gribskov, Dave Whaley, John Greenfield, and Steve Millard to the subcommittee.  He asked the subcommittee to appoint special members and to work with Gary Stivers and the Industrial Commission to do a complete review of the statutory provisions and the administrative rules and report back to the full Committee with recommendations.  The appointment of special members will be up to the subcommittee and the Commission.  Gary Stivers should submit a preliminary report to Chairman Barrett prior to the next Advisory Committee meeting.  Hopefully, a plan will be in place by next fall to get the problem under control.

 

Indexed Publication of Industrial Commission Decisions - John Greenfield reported that Industrial Commission decisions are available on CD Rom from M&M Court Reporting.  Nampa Attorney Stephen Stark also publishes summaries of decisions that are indexed by statute.  Mr. Greenfield indicated he also has spoken to Goller Publishing.  Goller publishes the Idaho Supreme Court decisions and knows how to index cases.  Mr. Greenfield will continue to follow up.

 

Industrial Commission Budget - The Commission's Financial Officer Don Robbins did not attend the meeting, as discussion of the Commission's budget was to be deferred until a later meeting.  Members have received additional material regarding the Industrial Commission's revenue and expenditures.  Mr. Barrett indicated the Committee could address the issue of the Commission's declining revenue at a later meeting.

 

Industrial Commission Policy & Procedure Memoranda - Industrial Commission Director Gary Stivers explained the process and the logic behind the recently issued Policy & Procedure Memoranda.  He explained that the Commission issued the memoranda in an effort to ensure internal consistency in the way its five claims monitors review claims closures.  In view of the response from the outside regarding these memoranda, the Commission has decided that administrative staff will not hold up closures or lump sum settlements based on the criteria in these memoranda unless supported by existing statutes or regulations.  The Commission may enter into formal rulemaking to clarify the inconsistencies these memoranda address.  It was explained, however, that the Commissioners might apply these interpretations in their adjudicatory role.

 

Chairman Barrett indicated that the Advisory Committee would only be involved in the rulemaking process if the Commission desires its input.  Mr. Barrett indicated that, as he reads the Administrative Procedure Act, interpretation of a statute requires rulemaking unless the Commission has interpreted the statute by way of a decision or a declaratory ruling.  It appears that the major concern about the issuance of the memoranda was the lack of advance notice of the changes in procedure. 

 

Public Comment - Additional public comment was received regarding the claims adjusting issues.

 

Future Meetings  - The next meeting of the Advisory Committee was set for Tuesday, June 26, 2001, in the first floor training room at the Industrial Commission, 317 Main Street, Boise, Idaho.

 

Agenda - The agenda for the next meeting will include reports from subcommittees, an update of the reciprocity agreement with Montana, the Industrial Commission budget, and a report from Gary Stivers on the Policy & Procedure Memoranda.

 

Mr. Barrett requested that if there are any workers' compensation bills that pass the legislature this session, please send them to Committee members.

 

The meeting was then adjourned.