Members Present:                       Members Absent:

Jack Barrett        Dave Whaley        Dan Obray
Rian VanLeuven      Dave Gribskov
John Greenfield     Bob Shosted
Steve Millard       Keith Hutchinson
Susan Dokken        Tracy Whigam
Alan Gardner        Jim Nelson

It was moved and seconded that the Minutes of the December 11, 2001, meeting of the Advisory Committee be approved as written. The motion carried.

Industrial Commission Financial Officer Don Robbins presented the Commission’s revenue projections for 2002 through 2011. Options were discussed. The Commission suggested that legislation would probably have to be submitted during the next session to increase the premium tax or to require that insurers pay taxes on the full premium amount rather than on a deviated rate. The subcommittee on Commission finances will meet in March, shortly after the second-half premium taxes are filed and will make its recommendations to the Committee at the next meeting.

Benefits Administration Bureau Chief Alan Conilogue reported on the Commission’s activities in enforcing the in-state adjusting requirements. He indicated that most of the questions that have arisen since the Commission’s November 28, 2001, letter have been in regard to medical fee review. Many medical fee review companies are out of state. Two written inquiries were also received in regard to the statement in the letter that checks should be drawn on an in-state bank. Discussion was held. Mr. Conilogue explained that although this is not specifically enumerated in the rules, the ability of a claimant to cash or draw upon a benefit check without delay is within the spirit of the prompt payment requirements of the law. As long as a check drawn on an out-of-state bank can be readily cashed or deposited and drawn on without delay, it complies with the statutory requirements.

The medical bill review issue was discussed. Alan Gardner suggested the Commission consider adopting a database that is more predictable than Medata. Alan Conilogue explained that the Medata information is based on the actual charges of Idaho health care providers. The 90^th percentile is determined by surveying healthcare providers and finding the rate at which nine out of ten bills would be paid at full rate. Hospital charges were also discussed. They are more complex than physician charges and are not regulated by the Commission. After discussion, it was suggested that the Commission think about the matter and present something at the next meeting as to whether it would want to change the database.

Subcommittee on Fraud Statutes

(John Greenfield, Alan Gardner, Dave Whaley, Keith Hutchinson, Dave Gribskov)

This subcommittee has not met since the last Advisory Committee meeting.

Subcommittee on Child Support Garnishments on Workers’ Comp

(Alan Gardner, Jack Barrett, John Greenfield, Keith Hutchinson)

Subcommittee Chair Alan Gardner reported that the members met with Health & Welfare’s Deputy Attorney General Kirsten Ocker. She indicated that there is no consistent procedure used by all of H&W’s seven districts to garnish workers’ compensation benefits for past due child support. Health & Welfare needs to develop procedures and needs information on what benefits can be attached. After the subcommittee meets again, it may draft some legislation. Jack Barrett indicated it was his understanding that Kirsten Ocker was going to talk to her clients and then the subcommittee would meet again and reach some agreement with the Department on percentage and on developing consistency statewide. The subcommittee will provide a recommendation to the Committee. If the Committee supports the recommendation, the Commission will need to meet with the appropriate agency heads at Health & Welfare.

Subcommittee on Medical Release Form

(Steve Millard, Sue Dokken, Alan Gardner, Keith Hutchinson)

Steve Millard indicated that a report would be presented at the next meeting.

Industrial Commission Chairman James Kile provided background information on the proposed amendment to the Commission’s policy on paying for copies of transcripts. The cost of purchasing copies of transcripts for parties this year was approximately $60,000. The Commission wishes to amend its policy to reduce its costs and pay only for those copies provided to parties who can show financial hardship. Discussion was held on contracting for services under the state pricing agreement and with individual reporters. The Commission will check on whether it can contract individually with reporters or whether it has to use only those reporters who have submitted a bid under the state pricing agreement. It was decided that a subcommittee should be formed to meet with court reporters and make a recommendation that would resolve the problem on a long-term basis. Subcommittee members are Keith Hutchinson, Chair, Tracy Whigam, and Alan Gardner.

Committee Recommendation on Transcript Copy Policy

The Advisory Committee recommended by consensus that the policy pertaining to purchasing copies of transcripts, as amended by the Commission, be adopted by the Commission for the short term and that the subcommittee meet with court reporters and make a recommendation for a long-term solution.

Representative Eulalie Langford presented draft legislation for the Committee’s consideration that would eliminate the exclusive remedy provision of the Workers’ Compensation Law when there is a showing of gross negligence on the part of the employer that results in an accident and injury. Accompanying Representative Langford were the family and friends of an individual who had been killed in an industrial accident, which the family attributes to the failure of the employer to maintain his equipment in safe condition. It was their hope that the proposed amendment would prevent this employer and others who negligently fail to maintain safe working conditions for employees from continuing to work in Idaho. They wanted to know what entity had control over safety in regard to the employer and whether the Committee could help them find the correct place to report the unsafe conditions so the employer could be prevented from causing future injuries.

Representative Langford’s draft legislation was discussed. The members of the Committee explained the purpose and intent of the Workers’ Compensation Law through history. They expressed sympathy to the family but indicated that they felt the proposal would not prevent the kind of accident that had occurred and that changing the law in the way proposed in the bill would cause damage to the whole system by eliminating the exclusive remedy. After discussion with Representative Langford and the family and friends, the Committee indicated it could not support the proposed legislation. A member of the Committee offered assistance to the family in finding a contact that might be able to prevent the employer from continuing to work with unsafe equipment.

The Committee recommended by consensus that the Commission not support the legislation proposed by Representative Langford.

The Committee reviewed House Bill 599 amending Idaho Code § 72-412 to provide equal income benefits for death to widows and widowers under the Workers’ Compensation Law. After discussion, it was the consensus that the bill’s sponsor should be contacted and a suggestion be made that subsection (2) be stricken and the word "widower" be inserted into subsection (1).

The Committee also reviewed House Bill 606 amending Idaho Code § 72-438 to provide that specified contagious diseases, when contracted by a fire fighter, an emergency medical technician, or a first responder, will be presumed to have been contracted in the line of duty upon a showing of certain evidence. It was the consensus that the bill was flawed and might be unconstitutional. The Committee made no recommendation.

This issue was continued from the Advisory Committee’s last meeting. The material from Oregon promised by Mike Taylor of the NCCI was provided for the Committee’s consideration prior to the meeting. Tom Johnson, attorney from Liberty Northwest’s legal department in Oregon, spoke to the Committee about the results of the legislation that was intended to resolve this problem in Oregon. He said the Oregon legislature had passed the law without much thought as to the consequences, and he urged the Committee not to allow Idaho to do the same. He recommended that before taking legislative action, the Committee look at the scope of the problem, at how many complaints there are. The complaints are valid from the perspective of the individual employer whose premiums are increased, but Oregon implemented a global change that affected all employers and the change did not help all employers. One of the problems is that third-party liability is not always clear-cut and it is difficult to predict what a jury will do. Lawsuits move the parties into the tort system, which has a different purpose than the workers’ compensation system. A tort claim can take 2 or 3 years to resolve after the suit is filed, and parties have 2 years to file the tort after the accident. Oregon has experienced a system-wide increase in costs. Such costs are ultimately passed on to the employer.

Discussion was held. It was suggested that employers might be able to negotiate their reserves with the insurer. However, someone indicated that under the Idaho plan, reserves cannot be reduced in anticipation of recovery. The recovery has to have been made first.

Attorney Woody Richards commented prior to the discussion. He indicated that the Department of Insurance and Senator John Gedde are looking into this issue. He thought the suggestion of the employer and insurer negotiating the reserves was a good one if it is allowed in Idaho. Mr. Richards represents NCCI and indicated that NCCI would be willing to participate in working on the issue, as well.

It was the consensus that very few cases have arisen on this issue and it appears to be more of an insurance issue than a workers’ comp issue. Therefore, inasmuch as the Department of Insurance and the NCCI are working on it, no further consideration will be given to the issue by the Committee.

A question arose regarding the Commission’s training course for "Certified Workers’ Compensation Professionals." Alan Conilogue, Bureau Chief of the Commission’s Benefits Administration Bureau, indicated that it was a training program aimed at adjusters and others in the workers’ comp system who are interested. It is designed and offered by the Commission in an attempt to create more consistency on benefit issues. There is no plan to make it required. The Commission hopes people will like it and will want to attend.

The Chairman reviewed the topics for the next meeting.

• Subcommittee reports (fraud statutes, medical release form, child support, Commission finances);
• Utah concerns about the 5^th Edition of the AMA Guides (review the comments and clarifications from Utah and see whether the Commission would like to implement something similar);
• Commission’s methodology/database for medical fees;

The next meeting of the Advisory Committee will be held on Tuesday, May 7, 2002.