worker's compensation division durham - …2019/10/14 · rulemaking advisory committee...

WORKER’S COMPENSATION DIVISION

Date: Monday, October 14, 2019

WORKER'S COMPENSATION DIVISION

Durham - Meeting Room

Members attending:

Alma Raya, AFL-CIO

Ashley Willard, Travelers

Daedra Buntin, Portland Public Schools

Dan Schmelling, SAIF Corporation

Diana Winther, IBEW Local 48 | MLAC

Elaine Schooler, SAIF Corporation

Eric Boling, Matrix Risk Management Solutions

Erin Nielsen, City of Portland

Gina Wescott, S | D | A | O

Jennifer Flood, Ombudsman for Injured Workers

Jovanna Patrick, Hollander Lebenbaum & Gannicott

Joy Chand, Takacs Clinic

Kevin Barrett, SAIF Corporation

Kimberly Layton

Kimberly Wood, Perlo Construction | MLAC

Larry Bishop, Sedgwick CMS

Nicole Peterson, Oregon Restaurant & Lodging Association

Olivia Geidl, Gallagher Bassett

Sheri Sundstrom, Hoffman Construction

Ted Heus, Preston | Bunnell, LLC

Agency staff attending:

Barbra Hall

Fred Bruyns

Jenni Bertels

Julia Hier

Lou Savage

Rob Andersen

Troy Painter

WORKER’S COMPENSATION DIVISION



Durham - Meeting Room

Transcript

Part 1 of 2

(00:00:00) Good morning everyone and welcome. And if you're still arriving, that's

great. We're going to go ahead and get started in just a moment. My name is Fred

Bruyns, and I coordinate the rulemaking process for the Worker's Compensation

Division. Thank you for taking the time to be here with us today. It may look like a long

meeting. We really don't know how long the meeting will require. We have this room all

day if we need it but of course, we won't stay longer than we need to, but we'll stay as

long as you want us to. So there's some handouts for today's meeting, an agenda and

some draft rules over on the table by the entrance and if there's also some advice that

we received from attorney, Ted Heus, and I encourage you to pick that up. It relates to

one of the issues we're going to be discussing later, but probably quite a bit later this

morning since Ted can't join us until after a hearing this morning, as far as I know. So I

think most of you have been to our advisory committee meetings in the past. It's -

these are very informal. It's not like a public hearing. We want everybody just to give

us their best thoughts on how to resolve certain rulemaking questions and whether

Rulemaking advisory committee meeting, Oct. 14, 2019 OAR 436-060

there ought to be some related rule changes. So we'll rely on your advice, including

your advice about any fiscal impacts ---- costs to you or the people you represent or

indeed savings to the people that you represent - either way, and we rely on that

information when we file proposed rules with the Secretary of State. So please keep

that in mind as we go along. If you're on the telephone with us today, you can leave

the conference and rejoin as many times as you like, but please do not put us on hold

because we will get your background music, and there's really no way for us to turn it

off without muting all of our listeners, and we don't want to do that. So just please

keep that in mind. We'll also pick up background noises in your office. So selectively use

your mute button as needed to make sure that we don't pick up even the keyboarding

sounds. So I've introduced myself. I'd like to go around the table and have all of us

introduce ourselves to the committee, but let's start. Is there anyone on the telephone

with us?

(00:02:29) Hi, this is Diana Winther. I'm IBEW Local 48 Chair of Labor.

(00:02:30) Welcome, Diana. Anyone else?

(00:02:34) I'm Daedra Buntin. I'm with Portland Public Schools.

(00:02:39) Welcome. Anyone else?

(00:02:40) Thank you.

(00:02:45) OKAY. I'm hearing no one. I'll turn to (inaudible).


(00:02:49) Hi, I'm Julia Hier. I'm a policy analyst with the Worker's Compensation

Division.

(00:02:54) I'm Jenni Bertels, Policy Analyst in the Workers Compensation Division.

(00:02:56) Lou Savage. I'm the administrator for the Worker's Comp Division.

(00:03:01) Joy Chand, Billing Specialist, Takacs Clinic.

(00:03:05) I'm Olivia Geidl, manager for Gallagher Bassett.

(00:03:08) I'm Nicole Peterson, Government Affairs Coordinator with Oregon

Restaurant and Lodging Association.

(00:03:13) Dan Schmelling, SAIF Corporation.

(00:03:15) Elaine Schooler, SAIF Corporation.

(00:03:16) I'm Kevin Barrett, SAIF Corporation.

(00:03:19) Larry Bishop, Sedgwick.

(00:03:20) Barbra Hall. I'm a manager of Worker's Compensation Division.

(00:03:23) Troy Painter, auditor, Workers’ Comp Division

(00:03:26) Eric Boling with Matrix.

(00:03:28) Kimberly Wood, Perlo Construction and MLAC Co-Chair.


(00:03:32) Jennifer Flood, Ombudsman for Injured Workers, DCBS.

(00:03:35) Alma Raya, Oregon AFL-CIO.

(00:03:37) Okay. Welcome to you all and thanks for joining us today. And I'm going to

turn everything over to Julia to take us through the agenda, but before I do that, do

you have any questions? Okay.

(00:03:51) All right. Well, I'm going to go through the agenda, going issue by issue

here. Also along with the issues document, we included a draft of some of the

proposals related to Division 060 rules. These aren't draft rules that we intend to file

yet, but they're just to give context for our discussion to try to see where some of the

changes that what we were thinking as some options, what they might look like in the

rule context to hopefully help with the discussion and help with the understanding. So

our first issue relates to workers' compensation forms. It would potentially be a new

rule and the issue is that our current rules within Division 60 do not provide any

direction to the readers about how to obtain required or optional forms, including

informational publications. If people are using digital copies of our rules, then those -

there are links directly. There's hyperlinks within the document so that people can get

to the forms. But customers who are using printed or paper rules are not provided

instructions on how to find those forms. They are all available on our website. A lot of

them also have related bulletins that can provide helpful information to understanding

or completion of the forms and the related bulletins can also be viewed or downloaded

from our website. And so what we're looking at doing was including potential options or


including the location of each form next to at least the first reference within each rule.

So we provided an example of how that might look in the form 801 context, and it

would list the division's website for the reader in case they were not using a digital

copy. Another option could be to adopt a new rule that just across the board lists out all

the forms and describes - that are described in Division 060 and explains how to find

those. And then obviously, we're open to other options that people have ideas on, or if

people don't feel like a change is necessary, we'd be interested in hearing that as well.

And we didn't anticipate any fiscal impacts associated with that - this change, but also

are open to hearing people's opinions on that.

(00:06:05) I like “A.”

(00:06:06) Did you say “A,” the first option?

(00:06:09) Yeah, because that way, it's wherever it is you're looking for information

about what you’re doing it (inaudible) reference letter, as opposed to whole long list.

(00:06:25) One point of confusion could be if someone goes to a specific part of the

rule and the form has already been mentioned earlier on, there would be that reference

then.

(00:06:33) Uh-huh.


(00:06:33) So another option would be to just put it at the bottom of the table of

contents, where you say - the historical rules can be found here, just a line saying all

forms referenced can be found on the division's website. It's right there at the outset.

(00:06:48) That's good. Anybody else have any thoughts? Preferences? Okay. I'm going

to move on, unless -- if anybody thinks of something as we continue on, just let me

know. Issue two is also related to forms. The division creates a lot of forms for industry

use, but insurers will occasionally make slight modifications to the forms to fit their

business needs. As an example, an insurer can insert their contact information on the

form. They might also clarify requests for information. One example was mailing

address, city, state, zip, as opposed to our form, which might just say mailing address.

They could also add their own related requests to the form. Historically, we've allowed

insurers to make these modifications as long as all the fields that we have on our form

are maintained. But if the rules are changed, to add information about where the form

can be located, the modification could imply that an insurer could not use their own

form. Further, there's also currently no process outlined in our rules about how insurers

can go about confirming their modifications or meeting approval from the division

before using their own. So we're looking at a few options. One would be stating in rule

that the insurer could use their own form if certain things are met, and I'll go through

those in a second. Another could be to create a process for an insurer to obtain

approval on the modified forms before use. We could also clarify in rule that insurers

could create equivalents of division-created forms - that that is allowed, or we could do

some sort of combination. And so some of the more specific options in the - looking at


stating in rule that an insurer could use their own form, one option could be indicating

as long as the insurer's forms containing, at a minimum, equivalent information to what

we've requested, ensuring that the form has the same form number used by the

division, that the form's appearance is substantially similar to our form, and that the

data elements listed in the insurer’s form are in the same order and general location as

the division's form. That would - could be one option. Another option could be to ask

that the form just be approved by the division before use, and then if there's issues in

those areas, they could be addressed ahead of time. Option three could be that the

insurer will obtain equivalent information to - which would be obtained from the

division's form. The – under - looking under options related to creating a process for

obtaining approval, we could require approval to use any modified form or require

approval on all forms, which request information beyond what's in our forms - or

something else. So I'm curious as to people's thoughts on how we could best address

that? Also, we do not expect any significant fiscal impact. There could be some fiscal

impact, depending on the procedure that was created, but we didn't anticipate that to

be significant, and again, inviting input on that issue.

(00:09:58) Hello, this is Daedra Buntin from Portland Public Schools. I'm up for option

one - you know, just indicating that there are specific elements that are a minimum

requirement I think is ideal in letting people make some minor changes as so long as

they - the key elements are still present.

(00:10:19) And just to clarify, there's a couple - there's two bullet points that have

option one. Are you referring to the first bullet point option one?


(00:10:30) I guess I was thinking more in terms that option one contained all four of

the bullet points. I misunderstood then, but --

(00:10:37) Yes, no, it does. It does. I just have – page - there's two pages. So on the

listed options, I probably didn't do my bullet points very well.

(00:10:47) Oh, I apologize.

(00:10:47) So it says state in rule that insurer.

(00:10:48) Okay. Yeah. I was stating under the first set of bullet points on page three.

(00:10:51) Perfect.

(00:10:52) Option one in that respect.

(00:10:55) Very good. Thank you for clarifying.

(00:11:02) And SAIF Corporation is comfortable with option one in both circumstances.

I believe that's our current practice now. Once we modify a form, we run it through you

to make sure it's okay first before putting it into production.

(00:11:16) Okay. Anybody else have any concerns on that route or any other

preferences? Options? Okay. We'll move right along to issue three.

(00:11:38) (Inaudible).

(00:11:38) Oh, okay. So issue three relates to social security numbers. The division

rules state that certain documents must include the workers social security number, but

a worker does not always have a social security number. So obviously, in those

situations there's none to provide. A worker is also able to rightfully refuse to provide

their social security number, and when they refuse to provide it, there's a possibility

that an employer might not have that available as well. So the division does use social


security numbers to verify identity, and having the identification number associated

with the worker through the social security number is also essential. Having an

identification number is essential as we moved towards electronic data interchange, and

so we're trying to look at how to handle the rules that currently addressed stating that

a worker has - or that the insurer has to provide the social security number. A little bit

more background. We have the Form 3283, which is a guide for workers recently hurt

on the job, and that explains to the worker that they do not need the social security

number to get worker's comp benefits, and the form also explains that if they have a

social security number and do not provide it then the division would get it from other

resources, the worker's employer or the worker's comp insurer or other sources. And so

looking at potential changes to the rules, we are looking at potentially amending the

rule to no longer require the inclusion of the social security number on 100 percent of

claims, but have it as the preferred identification method. If the insurer could not

provide the social security number, either because the worker does not have one or

because the worker had declined to get it and the insurer could not otherwise obtain it,

that we would allow the insurer to report that information to us instead. And then -

open to discussing other options, or if people feel that there's no change necessary.

And for fiscal impact, we expect minimal fiscal impacts to insurers if they need to

change their - related to changing forms or form letters. And we, of course, invite input

on that issue as well.

(00:13:56) Hello, this is Daedra Buntin with Portland Public schools. My thought is if

we're looking at it maybe not being a required inclusion, maybe we look at an


alternative of name and date of birth as the identifying method or - I don't know if it

would work for you guys to just do the last four divisions of the social security number

in combination with the worker's name. I do know that we certainly have some

employees that are not comfortable with providing their social security number. And I

certainly think in the age that we are where social security numbers are being stolen,

that finding another method to identify for this purpose - it might be beneficial.

(00:14:42) This is Alma Raya with the Oregon AFL-CIO. I think that's a valid point, but

there are also a lot of workers who don't have any social security numbers, so even if

provided number, they can't provide the first few numbers (inaudible).

(00:15:01) And this is Daedra at Portland public, in which case, I was thinking maybe

doing a date of birth might be a good alternative.

(00:15:16) This is Jovanna Patrick, claimant's attorney. I too agree that having some

identification number other than the social security number or some piece of it would

be beneficial. I do represent many claimants who do not have social security numbers,

and it's a great impediment to file a claim. Many of them are nervous about filing a

claim because they feel they're going to have to give that up. Some of their employers

know, some of them don't, and it can cause them to not want to file a claim when they

have been hurt at work. So anything we can do to take down that barrier, so that

injured people get the treatment they need, would be a positive.

(00:15:49) Kevin Barrett with SAIF. One issue that we ran into as the insurer is that

we're required to ask for Medicare reporting requirements. And so we asked twice if it's


not on the form, (inaudible), and we don't ask again typically. So allowing them not to

provide it is fine with us, but removing it entirely would be detrimental.

(00:16:21) Dan with SAIF corporation. Just to clarify, if it remained on the forms, is this

issue more about the insurer reporting the social security number to the Worker's

Compensation Division?

(00:16:33) Yeah, I think that the issue is that our current rules say that the insurer has

to give the SSN. And I think that that might leave some insurers to really have to feel

the need to push to get something to report to us. There - sometimes, if the worker

doesn't have an SSN, there's nowhere on the forms that articulates - that you can say –

Oh, the worker doesn't have an SSN. It just says you have to give us an SSN. And then

if the worker has declined to provide it, and the insurer doesn't, you know, the insurer

can't get it in other ways for whatever reason, there's nothing on the forms to articulate

that right now. It just says you have to - you have to give it to us. So --

(00:17:15) Our practice is if we don't receive a social security number or are unable to

obtain a social security number, we continue to process the claim because we

understand the requirement of it, and it not being required. I guess our frustration is

when we report the claim to the Worker's Compensation Division, if we don't go out of

our way to say no social security number is available, then we have communication

back from WCD saying we need it, we need it, we need it.

(00:17:42) Uh-huh.

(00:17:42) So I guess that if it was removed at that point to where we had an easier

way to communicate that there is no SSN available.


(00:17:52) Uh-huh.

(00:17:52) That would be helpful to us.

(00:17:54) Okay.

(00:17:55) Just from the logistics of reporting the claim.

(00:18:08) Anybody else have thoughts on this issue before we move on? All right.

Issue number four: So issue number four is related to the MCO number on the Form

1502. The division asks insurers to report the MCO number, and it's on the 1502 as a

field right now if the worker is enrolled in an MCO. But when we look at the rules, the

rules don't state that as a required field in the form. And so we thought it would be

helpful to require the MCO number on all form 1502s if the MCO enrollment is reported.

Ultimately, it helps having the MCO number in the claim system to be able to help

answer questions from workers with questions related to medical benefits and

treatment under the claim. So the question is whether we should look at making that a

required field when the circumstances are met, or if we should look at other changes or

no change. And I mistakenly did not fill out the fiscal there, but I don't anticipate that

there would be a fiscal impact since it's already on the form. It would just require

inserting it when the circumstances were met. But again, invite input on that as well.

What's that?

(00:19:28) I said that's fine.

(00:19:32) Okay.

(00:19:34) No issues.


(00:19:35) Okay. All right. Issue five is release of claim documents. So typically new

documents are provided to the worker's attorney every 30 days. The rule does allow

the worker's attorney to request specific documents sooner, and if the request - the

documents are requested sooner, that discovery has to be given within 14 days. The

term sooner was recently changed in 2017 to read more frequently, and there was an

argument that more frequently would imply a repeated action; sooner would imply a

single event, and so there was a concern that the rule may have unintentionally

brought in the frequency of sending new documents to the worker's attorney - the

specific documents. And then the rule also goes on to state that if the attorney requests

those specific documents more frequently, those documents must be provided within

the timeframe specified in section four of the rule. And section four basically gets us to

14 days unless the file is archived, lost, or destroyed. And in the context of new claim

documents, the applicable timeframe would be 14 days that we would apply. So there's

really two parts to this. Number one is whether to replace more frequently with sooner,

and the second part is whether to replace our statement about the timeframe specified

in section four of this rule with just 14 days, or something else, or no change. And

again, we didn't anticipate any fiscal impacts on those changes, but again, invite input

on that. Yes?

(00:21:13) Elaine Schooler with SAIF Corporation - we're fine with switching to sooner

from the more frequently. The cross-reference to subsection four, eliminating that can

create some confusion because subsection four is then there and is (inaudible) a time

period in which to provide documents. It says that it needs to be provided within 14


days for a non-archived file. Yet this rule says to provide discovery every 30 days when

we get a request. But without that clarification, that subsection four is the exception,

and when you have a 30 day period and a 14 day period without that distinction being

made, we can get initial requests that lists - from an attorney, requesting specific

documents with their initial retainer. And then it's which rule should apply, the 14 days

or the 30 days? Because it is a more specific request, yet it's also a general request at

the same time.

(00:22:27) Okay. Anybody else have thoughts? All right. Quiet group. Thank you. Issue

number six is on notices of refusal to be classified. So there's again kind of two parts to

this about the notice language that we give related to the notice of refusal to be

classified, and then also the process for appeal. So I'm going to go through both. So

some background on notice language. If a worker disagrees - I'm going to go to the

background section if people are reading along. If a worker disagrees with the

classification of a nondisabling claim, they're able to ask the insurer to reclassify the

claim to disabling, and if, after review, the insurer believes the claim should remain

classified as nondisabling, they have to send the worker and the worker's attorney a

notice of refusal to reclassify. And in that notice of refusal to reclassify, there's specific

notice language that we give, and that's quoted in this document. So what we can

sometimes see is insurers just copy and pasting that language into the notice of refusal

to reclassify. And you'll notice that there's, at the very end of it, it says, insurer insert

the current address and telephone number of the Worker's Comp Division ARU unit

here. And so sometimes that would be copied and pasted without them actually


inserting that information. And then also, the notice language fails to inform the worker

of how to appeal the decision. It just says contact the division within 60 days of the

mailing of the notice, and the process for appeal is outlined in more detail as we get

into this a little bit more, but I guess the issue is whether the notice language itself

should give more detail to the worker as to how to proceed with that appeal. The

background on the process for appeal, section seven of the rule requires the worker's

appeal to be in writing and mailed to the director within 60 days from the insurer's

notice. The division has interpreted that to allow for appeals to be filed via mail, fax,

hand delivery, or phone. The plain language of the rule is not clear on whether phone

requests would be allowed, and so we thought clarification would be helpful in that

regard. And so looking at options, and again, I'm kind of paraphrasing through all this,

so if anybody wants me to read everything, let me know and I can do that. But looking

at options, one would be to revise the notice language in the rule to provide the

division's actual contact information instead of requiring the insurer to insert it and to

further describe the methods for the appeal. And so we provided some draft language,

and it includes a statement about you know, if you disagree, you can appeal to the

Worker's Comp Division within 60 days of the mailing date of the notice or you'll lose

your right to appeal, and then articulating, you may appeal using, and we provide our

form number that's available, also providing details on where to send written requests

or faxing and indicating if they do not notify the Worker's Comp Division within 60 days,

they will lose all appeal - all rights to appeal the decision and for assistance, giving

them the number to the Worker's Comp Division and also the Ombudsman's Office.


Another option would be to - and also, this is kind of, we could do either or both.

Another option in the rule is to explicitly allow for an appeal via phone and to clarify the

other methods for appeal. And so provided some potential rule language here, just

articulating it's that they can be submitted to the division by mail, hand delivery, fax, or

phone. We could also make both of the proposed changes, like I said, or do something

else. And ultimately, we anticipate a minimal fiscal impact because insurers would need

to update some template language related to the notice of refusal to reclassify, but –

and - welcome input on that issue as well. So let's start with the - because there's two

pieces to this, the notice language and whether to add by phone. Let's start with the

notice language. What are people's thoughts in terms of not requiring the insured to

insert that information and then also providing some more details on how to go about

appealing to the worker within that? Any concerns, changes?

(00:26:59) Do you like the language?

(00:27:06) I'd say it has no issue.

(00:27:08) This is Diana from - sorry.

(00:27:11) Go ahead, Diana.

(00:27:11) Okay. This is Diana from MLAC. I'm always a big fan of more explanation for

something that you know the worker is probably actually reading. I know that the

division has helpful bulletins, but whether or not people go to look in them to find

information, and most of the time in my experience with dealing with my members

were otherwise very intelligent people – if you put it in the things that they're already

reading with explicit directions for who to contact as well as actually specifying the


date, which I think is helpful rather than 60 days from the date of notice. And people

don't always pay close attention to that as they should. But that's just my 2 cents on it.

Thank you.

(00:27:50) Thank you.

(00:27:50) Diana, this is Lou. I always worry that although, you know, more

information is better, at what point do people's eyes glaze over? So do you feel like this

strikes the right balance?

(00:28:08) I think it's helpful because it's information. It's not necessarily about the full

long process about, you know, as much as it is. These are just ways to go about this

process. I also, though we're not there yet - I think that the idea of doing the telephone

option is beneficial as well, just because for those who are unrepresented, I think that's

probably the easiest thing than - rather than someone (inaudible), which is what my

official written notice would need to look like.

(00:28:36) This is Jennifer, Ombudsman for Injured Workers. Ditto with what Diana has

said. One of the things about when a worker calls because they've gotten something

that they don't understand, it's very helpful if the piece of paper that they have in front

of them has the full language that we can go through and say this is what this means.

These are your options on how to appeal it versus needing to go to another source to

get that information or for us to say, okay, here, let me send you the email or a text

with the information in there. These are your ways of doing it. It's just very helpful for

the - those instructions to be very clear in the document in making that decision.


(00:29:18) Yeah, and I would agree with Jennifer and Diana about having, you know,

the specific methods set out within the denial itself - I think that's very helpful. One

thing that I didn't see on here that I know the Board does is allow email appeals. I

don't know if that's something that's been considered or an option, and I don't know

how much claimants used that, but at least with claimants who come to me who were

unrepresented at one point, it seems that most of them use the email option to appeal

their denials of their claims, and that might be another easy way to lessen some of the

phone calls but get it done.

(00:29:55) SAIF Corporation has no issue with the notice. We just want to throw out a

reminder that whenever we change templates, we need some lead time. So if the

change is made sooner than later, it's always best for us as far as working with our IT

department to get these changes made. The other thought, and this is just my own.

There's a lot of information in here, and you talk about you may appeal this, you can

send this, you need to notify here for assistance there, and it's just one run-on

paragraph. Has any thought ever been made to bulleting this out to say you may

appeal and then the sent written notice would be its own bullet, if you do not notify

would be its own bullet, and then for assistance would be its own bullet. So as you're

reading down, you go, Oh, I need to send this, for assistance, I can do this; and then

this is this. So that you see those instead of going through and going, what am I

supposed to do? Because I glaze over when I read this, but if it's bulleted, and I can

see those key verbs of what I'm supposed to read, the verbs of what I'm supposed to

do, then it's like, oh, for assistance, boom, right here it is.


(00:31:13) Just develop points.

(00:31:15) I agree.

(00:31:16) I'm sure our IT department (inaudible).

(00:31:21) Fred, could -- are we able to do bullets in the rules? Because I know there's

some limitations with rulemaking with bullets that can cause some challenges.

Something we could --

(00:31:30) I'd have to check with the Secretary of State.

(00:31:32) Yeah.

(00:31:32) But we could probably.

(00:31:35) Well, that then becomes (inaudible).

(00:31:37) Yeah.

(00:31:39) So yeah, that's --

(00:31:41) Yeah.

(00:31:41) So maybe it's just putting a space.

(00:31:43) Uh-huh. Yeah, Yeah.

(00:31:43) Break up the paragraph.

(00:31:44) Yeah, yeah, paragraph breaker. Yeah.

(00:31:46) Spaces rather than bullets because at least then you see those key words.

(00:31:50) Thank you.

(00:31:51) Yeah. Okay.

(00:31:55) This is Daedra from Portland Public Schools. So I wanted to throw out there

the possibility of maybe creating a form, like a 1502 that the insurer uses to report or


do a notice of refusal to reclassify, and that way it assures that all of the information is

on there. So if it's a document that they create and all they do is fill it out, and that's

what's provided as a notice to - of refusal, that ensures that the data and the appeal

information is there.

(00:32:27) Are you referring to a form that the insurer would send to the worker? As

opposed to --

(00:32:33) Yeah, in lieu of doing a template letter for a notice of refusal to reclassify. If

there was a form that they could fill out, just like when an employee requests the

request for review of a reclassification. You know, if the insurer actually had a form

similar to a 1502 that they sent out that is the notice of refusal to reclassify that either

the State produces as opposed to insurers having to create a template letter and having

to ensure that it is updated. If the state were to create something that they just, you

know, complete, you know, mark the box or do a narrative in one spot or another, that

might ensure that all that data is on there as far as (inaudible) language and might

make it easier to ensure that that information is being provided consistently and

accurately.

(00:33:28) Okay. Any thoughts, feedback? So I know we touched on it briefly, but the

second part to this was the - changing the rule to explicitly allow the appeal via phone

and to clarify the other methods for appeals. Before we move on, any other additional

thoughts on that piece of it? Sounded, from what I had heard, people were comfortable

with that change. But --


(00:33:57) I'm comfortable with the change. This is Jennifer, Ombudsman for Injured

Workers. However, phone systems aren't always real reliable, and we'd want to make it

clear whether or not a person leaving a message at 2:00 a.m. on a phone message that

might not come through, just kind of that whole acknowledgement of a phone

conversation because we run into that situation where the worker may try to call, may

catch me at 6:30 on the last day of appeal and trying to get a response in and just that

whole documentation trail I think for both ends, from WCD's end as well as the person

that's requesting the review when it comes down to that last day. If it's done by phone,

what's that process going to look like in acknowledgement of that mess? If it's - is it a

message? They have to (inaudible) what that is. I really like the email option. Texting is

huge, by the way, if there was a way for the department to be able to set up something

where a person could send a text in that was traceable. Well, actually, we don't know

that all of our texts are traceable in this state.

(00:35:17) Jovanna, you had mentioned the Board's email – how they accept email of

appeals. Do you know if that's in a secure system within a secure portal or - because

email, it is generally not secure?

(00:35:29) You know, I'm not sure. They do have their own email address. I'm not sure

how they receive that information and what they do with that email when it - when it

gets there, but I see it in claim documents all the time.

(00:35:41) And what happens for an unrepresented worker that sends an email hearing

request, they get an email back saying you have to fill out this other form -- thing to do


it. It’s a little clunky, but it does work, or they'll contact us, and we'll get it faxed and

encourage them to get legal representation.

(00:36:03) Kevin Barrett from SAIF. Looking at 436-060-0005, the mail definition, this

kind of touches to cross references and why I think it might be beneficial to keep some

of them. Mailed or mailing date includes the date on that (inaudible) specifically

references (inaudible). So it's already in the rules that mail could be emailed.

(00:36:25) Oh, that's true.

(00:36:26) I agree with (inaudible) point. It might be better to actually list all the

possibilities in bullet.

(00:36:45) Okay. Any other thoughts? All right. So issue number seven is on the

reclassification process. So currently, there's some inconsistency. Well, there is an

inconsistency in the process for reclassification, depending on whether you're going

from a nondisabling claim, wanting to move it to disabling; or if you have a disabling

claim that then got changed to nondisabling, and you want to get it back to disabling.

And so usually the way these things work is we have a nondisabling claim from the

start. Somebody wants to reclassify it to disabling, and if that happens, they need to

first ask the insurer to get that reclassification, and the insurer can say yes, we'll

reclassify or no, we won't. Here's your refusal. And then they can appeal that to the

division. But in some circumstances, the insurer classifies the claim initially as disabling,

and then they change it and decide to change it to nondisabling, and if that happens,

the way that the current process is, is that the worker is able to go straight to the

division with a dispute related to that change. The way the statute reads, 656.277(1)


says a request for reclassification by the worker of an accepted nondisabling injury that

the worker believes was or has become disabling, must be submitted to the insurer or a

self-insured employer. So the question is whether the current procedure is consistent

with the requirements of statute, and if it's not, then we - looking at how to make it

consistent - and to make it consistent, looking at modifying the rule to require the

worker to first request the reclassification from the insurer, even in these cases where

it's going from a disabling claim, going to a nondisabling claim that the worker would

have to go to the insurer first and say, can you reclassify it back to disabling, get their

notice of refusal to reclassify, and then go to the director, as opposed to the current

process, which allows them to skip the insurer and go straight to the director. And so to

do that, we were looking at modifying our rule to require them first to get the

reclassification request by the insurer, and then in the rule, we could incorporate some

of the language that's in the notice to worker about what that means to have a

nondisabling claim, and if that - they think that there's a mistake, that they should first

request reclassification from the insurer, and then if they disagree, that they could

come to the division at that point and modify the rule to require that that process

require them to first go to the insurer and not allow them to skip that piece.

(00:39:49) This is Kevin with SAIF Corporation - Kevin Barret with SAIF Corporation.

Sorry. We have two issues with this. One, the subsection (c) potential draft language

doesn't line up with what you would normally have as a classification (inaudible)

claimant. It might be confusing to some workers, particularly if you were able to return

to full work at wages on or before the fourth calendar day after leaving work. That


doesn't reference authorized timelines or timelines to be payable or they actually just

loose. In the classification section, subsection two --

(00:40:22) Uh-huh.

(00:40:22) -- it would be better to have more of a cross reference back to subsection

two. Even though the language is not as clear to the worker, it would be less confusing,

you know, especially if we were to argue about this litigation later with industries. If

they don't line up, then you may have a different set of circumstances for someone who

is disabled, (inaudible). Second, there is a timeframe element that seems a little odd. If

the 60 days on the appeal of (inaudible) acceptance is removed and (inaudible)

deadline, they would have a much shorter timeframe to appeal the decision. It seems

like there should be two different deadlines, one for the decision and one after the 60

days may have expired. Then they still have a year to request reclassification. Does that

make sense?

(00:41:18) I believe so.

(00:41:30) This is Jennifer. I just realized as Kevin was reading that, so I apologize for

this, but where it says you were able to return to work at full wages, sometimes it may

be appropriate that the claim is nondisabling, but if the worker still isn't able to return

to go to work, but it's not related to the claim, so I don't know how. I just know that a

worker would be like, what do they mean I'm able to return? I can't return. My doctor

says I can't go back. But if it’s typically we don't have very many of these claims that go

from disabling to nondisabling. They'll just get a partial denial and the claim just will be

processed as a disabling claim, even though it might be that condition that may be


causing the disability, and then to go through litigation if that's the case. But I just, as

you were reading it, I thought, Oh, I know the first thing they're going to say is that I

haven't been able to return, and that's what this is telling me that I have been. I don't

know how to fix it.

(00:42:45) This is Jovanna. It seems cumbersome to require, like when you go from

nondisabling to -- I'm sorry, when you go from disabling to nondisabling, that's very

rare to me. I think I've seen that a couple times in my career.

(00:42:56) Uh-huh.

(00:42:56) But in that instance, there's already been a decision that was disabling, and

now the insurer has already made the decision that it's nondisabling. It seems

redundant to ask the insurer to change it back immediately. They've already made their

decision, they have a reason for it, and so I think that should go straight to the division

because there's already been the initial decision and a change, whereas if it's

nondisabling, then, of course, the worker needs to ask them to make a decision first,

which they haven't done already after that initial. So leaving a direct appeal for it going

from disabling to nondisabling just makes sense. It makes for a faster resolution of the

claim and less paperwork for everyone.

(00:43:46) Any thoughts? Okay. Issue number eight is related to the weekly wage and

the intent of the wage earning agreement. So in certain situations, the insurer must

base the rate of compensation on the intent of the workers wage earning agreement in

place at the time of injury. The rule does not clearly articulate the calculation method

for an occupational disease claim. And we have the rule language quoted in the issues


document here. But a couple of ways -- it specifically refers to the intent of the worker's

wage earning agreement in place at the time of injury. And for an occupational disease

claim that leaves a question mark. And so ways to address that would be to - our

thoughts were to either delete in place at the time of injury, and we think it would then

go to the general provisions in the rule. (3)(a) and (b) of the rule talk about an injury

claim. Here's when you have to look at what the wages are, and in an occupational

disease claim, here's the time period you're looking at. And so by deleting in place at

the time of injury would get the reader to those general provisions. Another option

would be to clarify that it's in place at the time of injury or verification of disability

caused by an occupational disease or other options that people have in mind. And then

we do not expect any fiscal impacts from that, but also welcome input on that.

(00:45:26) Elaine Schooler, SAIF Corporation. Our preference would be the second

option, just adding in verification of disability and not eliminating in place at the time of

injury in option one. Both pieces of clarification are helpful. I think that explaining to

both sides what we're looking at is (inaudible).

(00:45:47) Okay.

(00:45:50) Yeah, I agree. I think that creates greater clarity for everyone involved.

(00:45:53) Okay. All right. Number nine. Issue number nine: So again, the weekly wage

rule. When an insurer averages hours to obtain the worker's weekly wage, there could

be uncertainty on how to adequately account for hourly wages for time not actively

worked. So things like vacation, sick leave, that sort of thing. So a worker who has a

new wage earning agreement in place for four weeks or more who also earned irregular


wages and experienced a pay rate change during the applicable 52 weeks gets their

wages averaged under , I'm sorry, calculated via an average hours method, and that's

detailed in our rule, which we have quoted. The intent is to include all wages, which is

defined under statute. It's also consistent with statute, which requires that calculation

be based on 66 and two thirds percent of wages, which would include things like

vacation pay and sick pay and other types of hourly pay, which some have interpreted

as not being quote “worked.” The division considers those types of pay to be wages

under the statute and has interpreted our rules that way, but given the differing

interpretations about average weekly hours worked, we thought clarification may be

needed. And so we are looking at a couple options. One would be to delete the

reference to work, and so the rule would just refer to calculating the worker's average

weekly hours at each pay rate, and then talking about other irregular wages. Another

option could be to basically define what average weekly hours worked means to include

all hours paid at an hourly rate, which results in a payment of irregular wages for that

period and articulating that that would include but not be limited to things like pay for

regular hours, overtime, vacation, sick leave, paid time off, or bereavement. Or if

people have other options, also open to those, and then we believe the changes to the

rule are consistent with the industry practice, and so no impacts would be expected,

but again, input - invite input on that issue as well.

(00:48:06) This is Diana from IBEW. Much like the previous issue, I prefer option two. I

think it creates greater clarity. I appreciate specifically the examples of including


overtime, vacation, sick leave (inaudible) any mystery for anyone who might not be

familiar with that. Thanks.

(00:48:26) This is Jovanna. I would agree with Diana. I think greater clarity is good,

and (inaudible) understands that as far as the list of things, it's nice to have them

spelled out.

(00:48:37) This is Dan with SAIF Corporation. This has been our business practice from

our understanding or intent of what the rule says. I guess a possible third option is

WCD did issue that industry notice and examples, but was after we -- or after the

division 60 0025 rules revitalized about nine months ago, and a number of examples

were provided. There could be an additional example provided where you have

someone with your regular earnings that has wages paid for vacation, sick leave,

bereavement, et cetera, and those included into the average weekly wage calculation.

I've found our policy holders using those examples and forwarding it straight to the

policy holder and saying, there it is. Here's the example. That has been extremely

helpful, and so maybe just including that example in that industry notes would be

helpful.

(00:49:38) I like the combination of the two, the second bullet and Dan's suggestion of

putting one of those examples in that list of examples that the department provided.

(00:49:50) This is Daedra Buntin from PPS. I concur.

(00:49:56) Okay. All right. So issue ten relates to the wage dispute process. So the

wage dispute process is outlined in section A of the rule, and it implies that insurers can

only resolve wage disputes by confirming the correct wage with the employer, and it


suggests that a worker may not be able to request a hearing until they attempt to

resolve the dispute with the employer, and that could delay resolution of the dispute or

access to the hearing, and the statement specifically states if the worker disputes the

wage you use to calculate the rate of compensation, the insurer must attempt to

resolve the dispute by contacting the employer to confirm the correct wage and then

contacting the worker with that information. If the worker still does not agree with the

wage calculation or with the wage calculated by the insurer, the worker may request a

hearing under the rule. So we were looking at a couple potential modifications,

modifying the first sentence by also allowing the insurer to resolve the dispute by

reviewing the rules, the records, and their mathematical calculations. Because they

might have all the correct wage information, they might not need to contact the

employer for that. They just need to make their correction. And then the second

sentence, looking at eliminating the word still. So it would just say if the worker does

not agree that they can request the hearing or doing one of those or something else.

(00:51:29) Elaine with SAIF Corporation. The first modification, it makes sense that the

insurer has it, (inaudible) application that they can clarify by talking with the worker.

That seems to make sense. You'll see most insurers would probably still confirm that

with the employer to ensure its accurate interpretation of their wage records. The

second piece though, eliminating the word still, it creates an issue where it could

eliminate that dialogue between the worker and the insurer. The goal is to reduce

litigation, increase access to benefits, and when there is a dispute, to bring it forth to

the insurer, so that they can go through this informal resolution, rather than go straight


to filing a hearing. That could then require -- then takes up to 90 days before a meeting

can occur and incurs additional costs and resources for it as well, allowing the insurer

and the worker to have that first step and then engage in that discussion, and I t

makes sense to avoid litigation, which should be the ultimate goal.

(00:52:45) Yes?

(00:52:44) I agree with both modifications to clarify the right to appeal without having

to contact the insurer first because it's the insurer's and the employer's job initially with

a claim to get this right. (inaudible) and so the insurer is supposed to get it right initially

and so is the employer, and so if they don't get it right, the insurer -- the claimant

should not have to wait however much time it takes with no deadlines for the -- to tell

the insurer, hey, you've got it wrong. Wait for them to maybe get back to them with the

employer information, and then if it's still not right, then -- then they get to file a

hearing, but, when, you know, how long do they have to wait for a hearing? And I can

tell you, oftentimes people will come to me with, I called the adjuster, and they haven't

got back to me. Now, you know, maybe it's because they haven't heard from the

employer. Maybe there's lots of reasons why, but almost everyone who comes in thinks

that they have a problem with the wage calculation and most people feel like they have

tried and have not gotten anywhere. So at that point, can a person file a request for a

hearing, or do I need to contact the insurer again? How long do I have to wait? So all

of that slows down the claim, whereas sometimes the only thing that gets the attention

of the employer to give the records is the request for a hearing. So (inaudible)

recommend and endorse allowing the claimant to request the hearing if they believe it's


been done incorrectly after that initial decision has been made by the insurer when they

start paying.

(00:54:29) This is Gina Wescott from SDAO. And I'd just like to say that I think it's

important to have a dialogue with the insurer first and you could put time frames on us.

Give us 14 days to get back to them. I just -- I see claimant's attorney requesting a

hearing. They don't even know what the accurate. They just can request a hundred,

you've got attorney's coming in. So I think it sets it up as more of an (inaudible). I just

don't -- I think you should try to have communication first, come to a conclusion

together, and if that doesn't work, then request a hearing. But I agree that it can take

too long, so put time frames on it.

(00:55:09) I was going to say the exact same thing that look; the idea is in the system

to reduce litigation. This is going to lead to litigation if you removed still. So I agree 100

percent. Put some time frames on there that it's clear when they can do it and -- but it

still encourages that discussion again and looking at it again confirming that issue is

there. Either the insurer is going to change their mind or they aren't and give that

second opportunity. I would agree wholeheartedly. We can put some time frames on it,

but not move this directly into a situation where we've got more litigation.

(00:55:46) Jennifer, Ombudsman for Injured Workers. I want the best of both worlds. I

think that it is important that the worker does have that ability to go to a hearing, but

there's many times these things can be resolved off a phone call that day. Honestly, 14

days is a long time for a worker to continue to receive benefits that aren't at the level

that they believe that they should be at. So if there will be the requirement that the


worker first contacts the insurer to have that time frame for a response is relatively

because they've—already - they should have already been - they should've already

received the documentation from the employer. I know that doesn't happen.

(Inaudible). But, a very short turnaround time before the ability of requesting a hearing.

What I don't know is that once a hearing is requested - or what I would not want to

have happen, once a hearing is requested that everything waits for that hearing

process because that's a very long time to get that resolved. So like I said, being able

to call and say, Hey, this is off. Here's the documentation. It can get resolved quickly,

and then there's other times where it's not going to get resolved, and tracking that

from the first time that the worker calls and inquires of the concern about the rate

versus three weeks later when they finally get representation and then the call comes

in, for those cases that get strung out it is pretty egregious.

(00:57:40) And then as far as the notice, my question would be, well, who has the

burden of proving what notice was given? Because -- and what notice is required?

Right? Because if there's most claimants who come to me in the first place, they'll say, I

don't think. I don't understand why they're paying what they're paying me. You know, I

don't - I'm not sure if it's right. Well, is that enough notice if they leave it on a voicemail

to the adjuster? How do we prove that they left that voicemail saying, I called my

adjustor to ask a question about my claim. I don't -- she never calls me back. That is

what I hear from 90 percent of claimants who show up at my office. So how do I know

what they actually said to the to the adjuster on the phone or if that was enough to

qualify for this magical notice, how we're going to prove that? Do I need to bring the


adjuster into the hearing and subpoena them? I know that's the last thing that they

want. Do they want to give me their call logs where they recorded the messages, I

doubt it. So if claimant comes in to me and it's been weeks, they think, well, I may

have left messages and she'll call me back. Has the notice been given? Can we file an

adjustor hearing, or do we need to send another letter or wait another seven or 14

days and request a hearing. Now they're a month out or so. And when you're

requesting a hearing, often times is what is sort of known as a trigger that the

employer or insurer needs to really evaluate it. I mean I put in my representation

letters all the time in there. You know what you provided with all the wage

documentation and all the payments that have been made sense so I can make sure. I

get it about 25% of the time initially, and then I have to request it again. So when is

the notice triggered? How is this person going to get paid? How are they going to pay

their bills during this wait time? Like anything that slows down the process of getting a

decision is not good for the worker.

(00:59:27) This is Dan, SAIF Corporation. Has there been an expressed concern or

issue with workers not requesting hearings because they're waiting for the insurer to

supposedly resolve the wage dispute that they think is going on? Because I guess I kind

of agree with Gina. Half -- you know, just purely anecdote. Half the time, the worker

calls and says, I think this is wrong because, and the adjuster says let's take a look at it

and we get it resolved. The other half of the time, the first notice that we have if

there's a dispute is the hearing request, and I don't know if you want to say that certain

attorneys make a phone call first and say, Hey, I think you've got this wrong. Can you


take a look at it? And other attorneys will go straight to the hearing request, but I

would love it if a worker came to me and said, I think you got something wrong

because it affords us the opportunity to get it fixed. And I'll throw out an example. Last

Thursday, our first notice of a worker with a wage dispute that their wage was

calculated back in may, they had been receiving time off benefits since may, was a

phone call that we received from Jennifer's office saying, hey, we think this wage is

wrong, and by 2:30 that afternoon, we'd contacted the employer. We corrected the

average weekly wage because we got incomplete records, I'm not saying it was wrong,

but we got incomplete records and an underpayment was made to the worker

(inaudible), and it's all because someone just let us know, Hey, I think something's

wrong. So I would go with that. How can you encourage more dialogue between the

worker, worker's representative, and the insurer to get this resolved quickly versus

throwing out the word still, and you can go ahead and request a hearing.

(01:01:27) That's fine. I would just say that if incomplete records, we just didn't have

the right information, well, whose fault is that? The worker hasn't been getting paid

right, and the employer (inaudible) is because the employer didn't do what they were

supposed to.

(01:01:40) Right. And so --

(01:01:42) And so they're actually there, and you know, when you say, well, you know,

(inaudible) just call us up and -- and let us know what's wrong and we'll just fix it and

that's great. But the claimant came to me with a problem because something wasn't

going right. And then I, through my efforts of meeting with them, talking with them,


reaching out to the claims adjuster, trying to fix it. That's all lovely. But you think the

claimant's attorneys should all do that for free by taking away the right to an appeal

immediately when it's clear to the claimant's attorney that the employer and the insurer

haven't done what they're legally required to under the rules already. I don't see why it

should be an extra required step to say, hey, you haven't done what you're supposed to

do. Please make it right before I get a chance to get paid for fixing the problem that

you came to me for.

(01:02:38) Anything else before we move on?

(01:02:39) (Inaudible). Would there be the ability in the statutes and the rules to

provide for an attorney fee in those situations where the attorney was instrumental in

getting the wage corrected without going to hearing? (Inaudible).

(01:03:11) I believe there is a statutory provision for allowing for an attorney's fee

when an attorney was instrumental in obtaining compensation, but that couldn't be

agreed to between the insurance company and then the claimant's attorney, even

though there'll be a request for a hearing. This is the issue. Certainly would fix the

problem (inaudible). I haven't -- I haven't explored that, but I do believe there is such a

cost for the instrumentality issue.

(01:03:43) All right. So I'm going to move on to issue 11, which is on supplemental

disability elections. Currently the rules appear to provide unclear direction regarding

elections to process and pay claims for supplemental disability. Comparing the language

in rule 0011 to rule 0035, rule 0011 requires an insurer to submit the form 3530 to the

director if the insurer elects to not process and pay supplemental disability. And then


the rule includes the insurer is not required to inform the director if the elects to not

process and pay, unless it previously said otherwise. Rule 0035 says an insurer may

elect to be responsible for payment and processing of supplemental disability benefits

to a worker employed in more than one job. The insurer must report their election to

the director under 436-0011. So we thought rule 0011 and 0035 should provide more

clear direction regarding notifying the director when an insurer elects to process

supplemental disability. Rule 0011 is clear in stating that the insurer is only required to

inform the director if it elects not to process and pay, but rule 0035 implies that

insurers must report to the director with both elections to process and elections not to

process. So options would be to clarify in rule 0035 that an insurer is not required to

inform the director if it elects to process and pay, unless they previously provided notice

otherwise. And we provided some potential rule language there. Another option would

be to modify rule 0035 to explicitly state that insurers who elect not to be responsible

for payment and processing of supplemental disability are required to report their

election. And we again provided some potential language, and we don't expect any

fiscal impacts with that, but invite input on that as well. Anybody have any concerns,

preferences in which way to go about with the fix? Pretty straight forward. Okay. If

there's no comments on that one, I'll move on. So issue 12 is also on supplemental

disability, relating to the changing the election to process and pay. The issue is that an

insurer is only able to change its election to process and pay supplemental disability

claims once after the director's first audit of supplemental disability payments and once

each following year. And we felt those provisions may be out of date. We do not see


instances where insurers are changing elections, asking staff who process these over

the past 10 years. They could not recall a time that an insurer changed its election. And

if there are limitations allowing an insurer to change its election after the first audit -

appears out of date and unnecessary. Provided some rule history to this issue, but in

short, we're looking to amend the rule to eliminate when an insurer may change its

election and this potential rule change would be to eliminate it completely as to when

they can do it, or just to eliminate the reference to the first audit. So maintaining that

they can only change the election once per year or other options are also - can be

explored, and we don't anticipate any fiscal impacts, but again invite input on that

issue. Anyone have any comments? Nobody's changing their election. So - all right.

Issue 13 is suspension of benefit requirements. So if an insurer provides the worker a

reason -- a notice of reasonable investigation requirements, the notice has to give the

date, time, and place of the interview, but the insurer can sometimes send these

notices about investigations for reasons other than just an already scheduled interview,

and also in cases where a deposition is scheduled, the rule is silent on whether they

would have to notify of the date, time, and place of the deposition. And so - have given

some additional background on this, but basically providing the rule information. So in

terms of looking at options to fix that, there is - we could only require the notice to

provide the date, time, and place of the interview or deposition if it's scheduled. So

adding in the deposition on that list and then saying you only have to give that if it's

something that has been scheduled, or we can look at other changes to the rule, and

we don't anticipate any fiscal impacts, but again invite feedback on that as well.


Anybody have any questions, comments, concerns on that one? Pretty straightforward?

Okay. The next one also is a suspension of benefit issue in regards to timeframes. The

rule - under rule 135, there's different references. Sometimes there's references to five

working days. Other times, there's references to five days without referencing working.

And then also looking at the phrase working day. There was concern that that could be

confusing to a worker because people work on different days. So is it their working day

or our working day? And so we were looking at - I provided a summary of each time

five working days appears and five days appears, but looking at revising the reference

to five working days to instead read five business days. We could explore defining

business days and then revising all the references that are just five days to read five

business days, so that there's consistency throughout the rule. It can be some sort of

combination of those things or something else, and we don't anticipate impacts, but we

also invite feedback on that.

(01:10:47) Kevin Barrett from SAIF Corporation.

(01:10:48) Yes.

(01:10:48) This is an area I think a cross reference may be more appropriate and

maybe referring to just the days. In 436-001-0027, the calculation of time is defined

very well consistent with normal civil litigation statutes that all days are calculated

counting calendar days. The first day is not included, and if the last day is a Saturday,

Sunday, or legal holiday, that's not included as well, and that would be, we think, better

than (inaudible) possibly a different definition for one subsection that might (inaudible).


(01:11:36) (Inaudible). This is Jovanna. My concern is - would be the shortness of the

time period in general. This is one of the shortest time periods I think we have. In other

words, it would be the six days that we have to dispute an IME location, and I can tell

you I work in downtown Portland and I have gotten IME notices in the mail on the

seventh day from the day they were mailed, meaning I've gotten them after the time

period to appeal them, and I work in Portland in a regular office. And so even with the

rural areas, I really don't think that five days, whether they're working days, mail days,

or just five calendar days with the normal notice, normal calculation, you know, moving

into the next business day is enough for something so big in the claim. I mean this is

the notice to the worker that Hey, you've really messed up, and if you keep messing up,

your claim is over. You know, it gives them a very short time period before moving into

that 30 day suspension period, but I think it should be longer regardless of how we do

the notices as far as the days are concerned. I think that, you know, moving it to the

next business day makes the most sense because that's how civil practitioners think of

that, but I think it - you know, seven to ten days would be a much more reasonable

amount of time, especially for someone who has already proven that maybe they don't

open their mail every day or return all their phone calls. Let's really give them a chance

to understand the importance of it.

(01:12:59) Elaine Schooler, SAIF Corporation. I just wanted to point out that when this

happens, when we get to this point where suspension is being requested, there have

been several attempts to connect with the worker to solicit their cooperation, and they

generally have 60 days to process its decision. Otherwise, there are risks of penalties


and other issues with the - in a timely decision. So the time periods here that we're

working under are, you know, very condensed at this point in time, often more than 30

days into our 60 day time period. So allowing a worker a greater period of time would

become problematic from a processing standpoint where we're trying to get that

information to make an appropriate, accurate decision, processing the worker's claim,

timing in that 60 day window.

(01:13:48) I would agree. I think there's been meaningful conversations with the

employee to say you need to engage, you need to engage, and giving them extra

time -- earlier you talked about that, you know, it's the employee's or the insurer's

responsibility, this is the employee's responsibility, and they know they need to do that.

So giving them extra time, I don't feel is appropriate. I think it does influence how the

claim goes and it shouldn't be if there's an extension there where they've already had

multiple opportunities and conversations to correct that, and this is sort of the final kind

of wake up. And if they don't open their mail, that's certainly their prerogative, but

there's consequences to that, and that's - I don't believe we should be offering more

time. I do get that it's a short period of time, but it's intended to be that way as sort of

like a wake up. This has been, you've been, you know, we've been trying to get you to

engage and you're not engaging and now we're -- this is your last opportunity to

engage. So I don't -- I wouldn't support extending the time. I understand -- I think it is

confusing. I do get -- and I actually think that the gentleman's suggestions on how to

phrase it is probably the best kind of tactic because I was like, oh, this is data that can


be confusing too because you work -- you work for a restaurant, they're open -- they're

opened seven days a week, right?

(01:15:14) Right.

(01:15:14) Or they're opened, you know, they're closed on Mondays and Tuesdays.

Who knows? But I think that maybe some definition that includes things like if it's a

holiday that (inaudible) I think that's probably the best way to kind of help them

through that the definition, but I get that the definition itself is difficult to navigate. It

can be confusing, but I think there's some ways we can clean that up.

(01:15:40) For clarity, this five days comes after the worker was given 14 days to

cooperate. Is that correct? In the process?

(01:15:52) No, I believe that it's given after the insurer has made several attempts to

contact them and then writes the Worker's Comp Division and says here's my attempts.

They have not cooperated, and then they get five days, and then there's an order

giving them 30 days (inaudible).

(01:16:08) The letter is saying please call me at this time, place, date, so that I can get

an investigator or a statement, or I can do this or I can do that. So yeah, it's not right

out of the gate. We've made a number of attempts to gather the information from the

worker.

(01:16:25) As far -- I mean in just thinking about the process in my head, it's like,

okay, well, there's been contacts, but I was just trying to figure out those warning

times to that worker, and quite honestly, I just saw the 14 days, so I wasn't sure where


that fit, and I thought is somebody smarter than (inaudible). This is the process.

Because you ask them to - this is for the interview, right? Investigation?

(01:16:54) I mean our (inaudible) practice is we send out a can you call me letter if we

haven't been able to get a hold of them by phone, and then if they don't respond to the

call me letter, then we have what we call the call me two, which is that, okay, now

we're setting up an actual date and time for you to call us, and when that passes, then

we'll move on to our request for suspension.

(01:17:20) But how much of that pre-work that (inaudible) is actually in the rule?

(01:17:26) We're not granted suspension unless we go through (inaudible).

(01:17:27) Right.

(01:17:30) But I was going to say, they're not going to grant a suspension.

(01:17:30) So -- okay. Okay. Yeah.

(01:17:33) If you haven't shown a diligent effort. To --

(01:17:34) Okay.

(01:17:39) Is there often a language barrier? That might be a reason where a worker is

not getting back, and if so, could they get more days if they're -- there's more?

(01:17:52) I can't speak specifically to a breakdown of, you know, a percentage of

claims with the language barrier. We did change and now we're required to send out

the multi-lingual notice with all of our correspondence that could impact a worker's

benefits. So with these letters that are going out, we're including the multilingual notice

that says put in English and then six other languages. This is a really important piece of

paper. If you don't understand it, here's a resource and call.


(01:18:22) (Inaudible).

(01:18:25) So --

(01:18:29) Well, I would say if we really just want the conversation, I mean we're not

trying to -- I think most adjustors aren't trying to just suspend benefits for no reason. I

mean we would rather have them call us because we need that information for the

investigation process.

(01:18:47) So my -- my last (inaudible) for a seven day period would mean that it

would eliminate all the confusion about weekends, most of the confusion about

holidays, because if the employer is sending or the insurer is sending it out the date

they're open, in seven days, they're most likely to be open that day too. So it would

create less confusion for claimants because if it's sent on a Friday, then they have until

next Friday. It would always give the claimant a weekend. I know people are expected

to open their mail and whatnot, but you know, hard workers, people who work multiple

jobs, they might open all their mail on the weekend, and that would always, at least,

give them the weekend to get their act together, open their mail, and if they don't open

it for a whole week, then that's definitely on them, but I just worry about, you know, a

Friday -- well, if something is sent on a Monday, they get it on Friday, you know, after

they get home late, have I missed their time, can I call? I just don't know. And that's

certainly happens with the mail. I mean it can take that long to (inaudible).

(01:19:45) Kevin Barrett from SAIF. That's probably the reason why I suggested that

cross reference to the calculation of time in four through six because it isn't very clear if

it's Monday, you have the weekend. (Inaudible) mail on Friday, you have until at least


the next Friday, and the first day is not included. So (inaudible) seven, that's actually

technically eight (inaudible) days. Right now, it's listed as five, but the first day wouldn't

be included. That's six, the way most people count days and most people count the

initial day as one not zero.

(01:20:17) And that's the normal counting process, right?

(01:20:19) That's the normal process.

(01:20:20) When you use --

(01:20:21) Every day.

(01:20:22) When You --

(01:20:23) (Inaudible).

(01:20:23) Business days or working days?

(01:20:28) It would essentially be what most people consider business days, but the

calculation of time describes the date the mail is sent out is zero.

(01:20:36) Is zero. Right.

(01:20:36) One, two, three. If you hit a weekend as the last day, Saturday, Sunday or

the holidays, it roles to the following.

(01:20:44) Right.

(01:20:44) And it's consistent, and I'm sure Jovanna is very familiar with civil litigation,

consistent with litigation because we have to define it that way. Otherwise, you start

wondering what was the holiday, and legal holidays are described in statutes

(inaudible).


(01:20:57) So, you know, Rosa, other processing rules use seven days to 14 days and

14 is 14 after that beginning day. So I'm confused why there's even five business

days/working days (inaudible). Why isn't it just (inaudible) the seven days?

(01:21:14) Uh-huh.

(01:21:13) (Inaudible).

(01:21:15) Because it accomplishes what he thought it might too.

(01:21:19) So seven calendar days, accomplishing -- so if seven calendar days fell on a

holiday, it would just be the next day.

(01:21:24) Or if it's -- (inaudible).

(01:21:25) But if it's, otherwise, it would be consistent with the five working days

essentially. Is that what I hear?

(01:21:30) It's not quite accurately the rules as they exist. Is that seven days would

technically then be essentially eight calendar days.

(01:21:36) Uh-huh.

(01:21:39) Right now, it's five, and it always falls to the weekend. You're always going

to be -- no matter where it's (inaudible), (inaudible) or if the rules were cross

referenced, (inaudible). Our concern initially, if a different definition was placed in a

separate section (inaudible) a unique calculation type, which is (inaudible).

(01:22:11) Okay. Any more comments on that one before we move on? I think we'll do

one more and then take a break. Okay. Okay. So -- and then that'll wrap up our

suspension conversation. So that'll be good. Issue number 15 is reinstating benefits

after a suspension. So if a worker has their benefits suspended, an insurer must


reinstate their benefits when the worker begins cooperating, and that may not equate

to full cooperation with the investigation of the claim. And so we were looking at

whether to amend the rule to eliminate the requirement for benefits to be reinstated

when the worker begins cooperating and instead require the reinstatement of benefits

when the worker fulfills the requirements outlined in the suspension order and we've

provided some draft rule language that could accomplish that. Or we could look at

other options or no change. The fiscal impact, we didn't anticipate any fiscal impact, but

also are welcome to hearing feedback on that.

(01:23:21) Jovanna again. I think this rule change is inconsistent with the Court of

Appeals recent case that came out in 2018, that's Basil D Yauger, 295 OR AP 330,

2018 -- my case, so I know it pretty well. There, the Court of Appeal said that, you

know, there are different levels of cooperation needed as the different procedural

levels, and at the level of suspension of benefits, reasonable cooperation is what is

required, not full and complete cooperation with actually achieving the goal of having

whatever goal it was. Let's say it was an interview. That's what the insurer argued in

Yauger was that no, we don't have to lift the suspension until that interview takes

place. The Court of Appeals said no, that's not right. That only comes - full and

complete cooperation is only required after a procedurally-valid non-cooperation denial.

After you go that additional 30 days from that order and don't make reasonable efforts

to cooperate, then you can suspend it. And so this rule kind of is making the insurer's

argument that was not successful with the Court of Appeals in Yauger and changing it

to a higher level of cooperation that is really required to get your benefit, to get the


suspension order lifted, and that's consistent in those cases. They decided to -

legislative history, which basically said the point of suspension is to wake up the

worker, get their attention, get them to start cooperating. If they start cooperating

again, then they're fine, but if they made no efforts to cooperate for that additional 30

days, then you can suspend. And so the problem I think with putting this burden on the

worker to show they fully really cooperated during the suspension period is one, like I

said, doesn't comply with the court case, but also logistically, the insurer is the one who

has the power to schedule it. So I'm the worker, I get this order - Oh, I messed up. I

call the insurer. Oh, I messed up. What do I need to do? Or hopefully, when can I get

my interview back on, but in my case, it was what do I need to do? And then it's upon

the insured to respond, get that message, schedule the statement at their convenience,

which can be days or weeks later. Well, during that time, is the worker cooperating? I

think the worker is reasonably cooperating as the rules and the case law envision it, but

this rule change would mean that I call the insurer today. They go, oh, you know, I'm

out of the office until next week. Let's do it next Monday. I have a whole other week of

suspension because the insurer can't take my statement? Even though I am now

reasonably cooperating. So I think it needs to capture this idea that -- that the worker's

reasonable efforts to get their claim back on track does not depend on sole and

complete completion of the actual statement or interview or whatever it is that the

insurer wanted.

(01:26:23) So --

(01:26:24) Oh sorry.


(01:26:25) Go ahead.

(01:26:26) Go ahead.

(01:26:27) I was just going to ask a question because I don't know how this works, but

so the worker goes, okay, well, I'll come in for the interview, and he goes, okay, I'm

going to set it for this Friday, and this Friday comes and goes, and the worker doesn't

show up for the interview, but he got his -- he's got benefits reinstated, and so then is

that that happens, do you have to go through the whole, I have to notify him a couple

of times before I can suspend him again? Because I don't know what the process

happens if that occurs because he's reasonably complied or whatever, but he's not.

He's just simply kicking the can to get his benefits again and still not cooperating. So I

don't know if that's, if there's a loophole there? And if there is, then I have an issue

with this. If there isn't a loophole, then (inaudible). I just don't want them kicking the

can anymore. I think that's the idea is look, you have to comply fully because we don't

want you in this situation where you keep saying you'll show up and then you don't

show up, which they have all the control to do. I hear what she's saying, and I

appreciate the fact that it isn't their fault if the insurer takes two weeks to set that up. I

appreciate that too, and I see your point, but I'm more concerned with an employee

who's not engaging than continuing to play a game to not engage or continuing to not

come and fulfill his obligation or her obligation by coming to the interview. So what

happens if that happens if they just don't show up for the interview? Do you have to

start the process over again?


(01:27:59) Yeah, if they've gone through the suspension and they've cooperated, and

we've notified the department that they're cooperating now, or you have an interview

set up with the person for such a time and then the worker doesn't show for that, then

we would have to go through the suspension process again.

(01:28:16) I don't think that that's a good resolution either. There's got to be some

good middle ground that addresses her concern. And then as far as --

(01:28:24) But as far as the logistics of the interview, the interview is really just a

phone conversation with the worker, and we've put a time, place, date on it because

we're required to put a time, place, date on it. Most of our adjusters work five days a

week, seven to four, eight to five, so they're available during normal business hours. So

once that suspension has been issued, it's simply -- I shouldn't say simply. It's the

worker calling us and saying, oh, okay, I'm available for a statement, and then our best

practice is you take the statement right then and there. It's not; we need to schedule it

for a week out because I'm not available right now. It's, no, they're on the phone. This

might be your only opportunity to talk with the worker. You take the statement.

(01:29:14) And I would hope that most insurers are like that, but I'm going to say that

not everybody is and follows SAIF’s best practices. So I want to be sensitive to that as

well.

(01:29:26) Yes.

(01:29:26) (Inaudible) recorded statement with a third party vendor. You know what I

mean?

(01:29:30) Right.


(01:29:31) Then you're going -- you'll run into that.

(01:29:32) Sometimes you need an interpreter. Sometimes you (inaudible).

(01:29:35) I had one where he came to me on a Friday, and I saw he had this order,

and I called the adjuster. No answer. I emailed her. She didn't get back to me. I'm just

saying, I mean you guys are great, but you know, she didn't get back to me that day.

She got back to me the following Tuesday. We set it up for the following week because

that was when she was available and could get it together. So, you know, he was a

worker that said yes, we're ready. Let's do this. And, you know, and not everyone can

do it on that exact moment. And I think there's also a distinction between reinstating

their benefits and notifying Worker's Comp Division. That might alleviate some of that

concern about them. It's like sure, I'll meet with you on Friday. Then they don't show

up. I mean in my mind, yeah, I see this as like a -- a ping pong match. You know, he

said yes, I'm going to cooperate, and the insurer says great, here's the time, and then

it's to the worker to come back and -- and have to -- to add to football thrown. Like I

said, I think their benefits should be reinstated on day -- you know, on that Monday

when they call, so they are eligible for benefits that entire -- entire week. If they don't

show up on Friday, maybe that's when you notify Worker's Comp Division, meaning you

don't necessarily need to notify Worker's Comp Division the second they call and

schedule the interview, but you do have to put it in your records that they get -- start

getting benefits that day. Perhaps that's the -- the division. But it was the case law

was -- was very clear that reasonable cooperation, not full and complete cooperation

and having and then you take it is what is required during this procedural stage. And


any rule that requires something different than what the Court of Appeals has laid out is

as the standard is just going to create more litigation.

(01:31:11) So would we have the ability of drafting rules to take into consideration the

repeat non-cooperation, you know, be able to, as you all know, I was like, Oh, as soon

as they made that phone call, I think their -- the suspension should be lifted, and I

believe that when they call that adjuster, that the adjuster goes, Oh, there was a

suspension in place, they've called, we're going to start paying time loss again because

they're cooperating. But I'm not sure how the rules are actually -- how they deal with

the official lifting of that suspension. So maybe there -- there could be some wiggle

room in there for -- I want to make sure that the worker starts getting their benefits.

And then I had a situation, and to be quite honest the worker had failed to cooperate

probably at least three times. Okay? They were like, nope, I want to cooperate. I need

my, in lieu of the suspension letter. Well, there was little to no ability of getting off of

that phone call that lifted at that point because he had already demonstrated that he

wasn't going to - or he had not yet cooperated. But with the insurance company, they

had to have there because it was - they had their attorneys involved, and there was an

interpreter that it was going to take another like three to four weeks before they could

actually get something scheduled for this person. So if there was something in place, if

we could write a rule to deal with, I'm going to call them one offs because I think most

of the time folks are like, they don't understand our system, and so I really have to talk

with them. I didn't know I needed to talk to them. What do I need to do? But for those

repeat non-cooperators, maybe we should have something in the rules to make it a


little bit more even keel to them, so they don't have to go completely back to the very

beginning of the suspension process.

(01:33:21) So –

(01:33:21) That was a lot of words.

(01:33:22) This is Diana from IBEW. I was just going to say I appreciate what Jennifer

was saying. Although I understand the concern that you don't want to have to start the

process over and over again, I'm under the impression that those repeat offenders are,

you know, not the most common, and I would hate to see the majority of workers who

just didn't, you know, quite get their act together the first time and make that phone

call then are stuck in a situation where they're not able to take care of themselves and

their families because someone's not available right away, or maybe there're

interpretive services needed and that sort of thing, and I'd rather have a beneficial role

for the worker who has finally got their act together and had an exception for what I

am understanding the sort of the aberration of the repeated or, you know,

noncooperator.

(01:34:16) This is Alma, Oregon AFL-CIO. We represent a diverse group of industries,

and to us, it might be very simple to get something incorporated and reply and get to a

phone call, but when there are people who may have lost their homes because of going

through this whole process, might not get the mail. I have seen a number of people

just sending me pictures of what does this letter mean? How do I respond back to it?

So you get an opportunity to be on the phone with them, and then it might take a

longer process, but they are already going through it. (Inaudible) be aware of that.


(01:35:01) Anybody have any other comments on this topic before we take our break?

All right. I think we'll break for 15 minutes or so and then come back here and resume.

All right. Welcome back, everyone. And I know I haven't said it as I go along, but I

really appreciate everybody's input. That -- it's been a really good discussion, and I

appreciate everyone coming here with their thoughts and feedback on what we've been

discussing. We left off at issue number 16, so I'll start there. And it relates to worker

requested medical examinations, also referred to as WRMEs. If a worker is found

eligible for a WRME because their attending physician or authorized nurse practitioner

did not comment on the relevant IME, that eligibility determination may change if a

concurrence to the IME arrives prior to the appeal timeframe of the WRME Order. And

we also have section (1) of our rule, which outlines criteria that have to be met for

eligibility of a WRME, but not all those criteria are then acknowledged in section (2)(b)

of the rule. I know Ted is here with us now. He also provided some feedback and

thoughts on this rule as well. And Ted, I'll let you speak fully to everything that you can

comment after here -- I'm done here. But, I know that there was kind of a summary

that you had put in there about wanting a procedural requirement and a time period

listed to obtain an agreement with the IME to create a cutoff, because there has been

some differing interpretations as to when an IME concurrence could arrive and whether

that would be considered when looking at if there is a concurrence in the record for

eligibility. And so we were looking at the options we have listed here in the issues

document were to modify the rule to create a cutoff date to assess if there's a

concurrence. That could be accomplished by modifying the eligibility criteria to require


the attending physician or authorized nurse practitioner to disagree with the reports or

to not concur with the reports by the later of either the date the worker requested the

WRME or 30 days after the worker's request for a hearing in (1)(a) of the rule. We

could also revise 2B of the rule to make reference to the eligibility criteria to make clear

that those are always a component of the evaluation. Could implement both of those

options or do something else. So Ted, do you want me to -- I'll turn it over to you in

case you have more to add to your thoughts or concerns.

(01:37:53) Well, no, I think the issue as described as is right on. I mean my experience

was, you know, that there needs to be some -- if we're going to interpret the statute as

it was written, meaning that no comment essentially gives the worker an entitlement to

a WRME, then there needs to be some sort of procedural cutoff in to where that

concurrence letter needs to come in. And my, you know, my goal is to streamline the

process as much as possible. I think it benefits everyone if the evidence that you need

to have in is done as soon as possible, so the person can get or not get the WRME as

soon as possible. So one recommendation that I had was just, you know, have the time

period to start running from the date of the IME, which is going to be before request for

a hearing, maybe even before a denial, I suppose before a WRME request. But the

benefit of that would be that people will know whether or not a WRME is entitled - you

know, to be gotten - because it's going to be almost just a comparison of dates at the

time that the request comes around, meaning that the worker is going to know whether

they're entitled or when they go to an attorney, whether they're entitled. The insurer is

going to know right away whether they're entitled. It seems to fit pretty well with the


rule because I mean the insurer is supposed to send the worker IME to the AP. I don't

always do that in my experience, but there's -- I guess the reason behind that is to

have them comment or at least, you know, review it. So it seems to fit with that sort of

time period, and I don't know, 30 days from the date of the IME seems reasonable, but

I recognize that there could be some problems, you know, down the road with that too,

whether they switch attending physicians after that 30 day period, et cetera, et cetera.

My other recommendation was sort of have a time period, a very short compressed

time period running from the date of the request of the WRME, so that if there's no

concurrence or request for a comment by the AP that, that the insurer needs to do that

right away, that they get like ten days or something extremely short, because if they've

had all this time to do it, before they can, you know, think about getting it done. They

need to obtain the concurrence or nonconcurrence or whatever it is, you know, within

that short period of time. Otherwise, again, (inaudible) granted. That has the benefit of

being sort of, you know, contemporaneous with the issue of the WRME when it's

requested and can avoid some problems of who the AP is, when - and that kind of stuff.

As the rule is now, it doesn't even -- and is written now; it doesn't really make sense

certainly in certain procedural contexts. I mean if you have to have documents

submitted to the WCD before -- within 30 days of the date of the request for hearing,

you know, sometimes we don't request WRMEs or you don't go to an attorney, you

know, within 30 days of the request for a hearing, there's nobody to submit that to. The

WCD doesn't want random records submitted to them on the anticipation that there's

going to be a request for a WRME. And so that, you know, restricting the rule to where


evidence is submitted to the department seems to be missing the procedural point of

really what we want is in a concurrence or a nonconcurrence obtained by the attending

physician within a particular period of time and where that period of time, you know,

rests is sort of, you know, up for discussion I guess, but that's sort of my view of it. I

don't -- you know, I had a case where, you know, there was no comment by the

attending physician. The WCD issued the order granting the WRME. Within the 60 day

appeal period of the approval, a concurrence in agreement with IME was submitted; the

WCD decided to reverse itself within a day, I think of getting that concurrence, because

it was on the Friday before a Monday holiday. WRME exam - the WRME exam

happened anyway and then there was some, you know, discussion about what to do,

about that situation because now you have an IME or a WRME that's been completed,

but that wasn't technically approved. At the time the WRME was completed, there was

some fight that I had to work hard to get a report because the WRME outfit didn't want

to send it to me and the rules required it. Anyway, that would be great to avoid, you

know, if we could by making a nice clear procedural rule without changing the

substance requirements. This is just, you know, a time to obtain the stuff and submit

stuff, which I think that the department certainly has the authority to do. We're not

talking about, you know, changing the statutory eligibility requirements. We're focusing

on making a rule that makes clear the procedural requirements of establishing, you

know, approval or establishing eligibility or not, evidentiary kind of things. So that's my

suggestion.


(01:42:55) So this was the subject of an MLAC subcommittee meeting, and there were

many meetings that were -- that occurred. Not only Jennifer was there, and some of

the other folks were there. I'm somewhat new to MLAC, so I was -- I was just getting

onto the committee, and so I believe my recollection is correct, but the -- but

previously, the presumption was if there was a concurrence – if there wasn't anything

from the IME doctor that precluded you, you had to have it - something. How did it go?

You had to have something. It went in the insurer's favor that they chose then. So

some insurers might choose not to even ask for the concurrence because if they didn't,

it precluded you from having the WRME. The exchange that we had was that, that's

probably not correct. We should have it the other way that if you don't submit

something, but the -- also it was, however if the insurer gets it, they get to submit it,

and it should be considered. And so that was the give that way – it flipped it, so that it

was more to your -- to the worker's advantage that the presumption is going to be in

their favor now that they get it, which was not the case before, but the other side of it

is if the employer or insurer actually does get the concurrence, they get to submit that,

and it does get to be considered. That's my recollection, and I -- my suggestion would

be if we're going to open this one back up, that we go back to MLAC and pull back in

those parties that were at the table and have a bigger discussion on that.

(01:44:32) Yeah, I was at those meetings, not subcommittee meetings, but the larger

ones, and basically it was my proposal to change the statute to make it clear about

whether or not -- what -- what does nonconcurrence mean, and that was -- whether it's

an agreement or disagreement, I wanted the statute to say agreement or


disagreement, and I wanted the rules to say agreement or disagreement and when I

decided to push that through the department, it wasn't really a give and take situation

by my recollection. Rather, the procedural issue about when a concurrence or

nonconcurrence needs to be submitted was simply a byproduct of changing it to the

way the statute is currently written and interpreted to new pay with the worker because

if there's no comment, the department needs to make a decision at some point. Before,

they would wait for there to be an agreement or disagreement, and if there wasn't

anything, they'd just, you know, find one way, but now they want the insurer to have a

time in which a comment could be submitted, and if there was nothing, then they were

going to have, you know, issue a decision. I don't -- I mean I don't remember it being

so much of a compromise as now we need to have a procedural rule for this in order to

make this functional, you know, function within the, you know, the context of not

necessarily a dispute, but an approval process. So, but yeah, I mean if we want to go

back to MLAC, we would of course push that, you know, this should be a one-to-one

ratio. We should eliminate the concurrence requirement entirely from APs because it

causes a disaster both for timing, both for clarity. You're creating litigation where there

doesn't need to be any. Really, if you get an IME and you rely on it, then the worker

should get a WRME and rely on it, you know, be able to rely on it. We're not relying on

it if it goes the other way, you know. So there's definitely -- that would be changing the

eligibility criteria, which would require, which would need to be a statutory change -

and a substance statutory change, but yeah, I think that's definitely a possibility that

we could bring up with MLAC.


(01:46:32) And just to go back to -- I probably should've done a better job with the

background. The full statute is articulated here in the background and you can see one

of the requirements is that the attending physician or ANP [authorized nurse

practitioner] does not concur, and that was kind of the language I think that was part

of that previous discussion, and that had that shift back in 2017. So, previously we

interpreted statute to mean that there had to be an affirmative statement from the

attending physician or authorized nurse practitioner stating that they disagreed with the

IME, and then in 2017, the rules changed and the procedure changed, so a WRME

would be granted if there was not that affirmative concurrence. So, if there was nothing

in the file to indicate whether or not they agreed, then it was deemed that they do not

concur, and then a WRME would be granted. So because some of these issues have

kind of developed as a result of the rule change in 2017 where there was that shift, and

then it's kind of opened up some of these additional questions that we're now looking

at. So just thought I'd clarify a little bit more of that background better.

(01:47:38) This is Elaine with SAIF. I remember the discussions we had, both at MLAC

as well as with the division where we're talking about WRMEs and the entitlement and

the agreement that we would look at this through rulemaking instead of making a

statutory change. Part of that discussion was to increase workers access to WRMEs

without contradicting the language of the statute, and it seems that the department's

rulemaking that we did back in 2017 has largely accomplished that with this. It notes

that only three WRMEs, the department has had to reverse its decision when it initially

approved it. And when we talked back in 2017 about this 30 day time period, that was


to avoid some concerns that insurers and MCOs had with insurers having to go to the

attending physician in every instance and constantly be hounding then for concurrence

or a non-concurrence with the impression that a wormy at some future date may or

may not be requested and potentially approved. And we didn't want to inundate

attending physicians' offices with these requests when it wasn't going to be an issue in

that particular claim at the same time where there was a denial issued based on an IME

and a request for a hearing had been filed. So we wanted to have this 30 day time

period, so insurers could go and reach out to the attending physician if a WRME is

being requested, and that was sort of the agreement made at the time and that that

30-day wouldn't be inclusive with the WRME request because those situations can

change where a worker may change attending physicians or they may have an

attending physician who is treating them because they're out of town for an extended

period of time. So there needs to be some flexibility in the rules, and it seems like we've

struck that balance where WRMEs are being approved with this different threshold.

Does not concur or does not comment and insurers in three instances have obtained

the concurrence from the attending physician past the 30-day period, assuming the

summary here. So it seems like we've achieved what we had discussed at the time and

that no change is really necessary here. I'm concerned about getting more procedural

limitations because of that hassle factor, driving doctors - really having to go back to

them over and over again in every claim where there is an independent medical

evaluation, and then the statute is clear that workers are entitled to a worker-requested

medical evaluation when the attending physician does not concur. So when that


concurrence is obtained statutory, they're just not entitled to that, but the time

limitation would run afoul of that.

(01:50:49) Anybody else have additional comments on this?

(01:50:52) To just amplify --

(01:50:53) Uh-huh.

(01:50:53) What Elaine said is that originally a different issue was raised with MLAC.

MLAC spent an awful lot of time, I thought maybe five meetings - yeah, looking at this

and having discussions about what it really was - were there problems that workers

faced and identified the WRME as being a problem that workers faced because it had

the bias words, some -- a doctor's inaction penalizing a worker, and, you know, say it

was clear that we don't think that a worker should be disadvantaged because of the

inaction of somebody else, and supported, you know, supported the change, and so

that was just a little bit more of the history of how we got to addressing that issue, and,

you know, just wanted to make sure that to do that, and then the issue that Elaine

said, which was fighting against the problem of our needing to ensure that there are

other doctors in the system that can be available for the patients, and that Worker's

Comp has a problem at maintaining enough physicians or in the system and not making

it too hard. So trying to balance those two needs, and I think we did it in a fair way and

(inaudible) between parties.

(01:52:23) I mean that I would just add that I don't think that rule that currently exists

does what either Elaine said or that MLAC discussed or that, you know, (inaudible)

seems to be supporting. The rule, the way it's written, I can't tell whether it means that


the 30 day period actually is some sort of limitation, or if there's documents submitted

after the 30 day limitation, whether that rule just doesn't apply anymore, in which case,

I'm wondering what that rule even applies for in the first place. You know, either -- I

guess I have trouble getting my head around a 30-day limitation from a request for a

hearing, but then if you submit things 60 days for, you know, 80 days from the request

for a hearing or after the decision even, then they can just, you know, reverse it and

account for that concurrence, and then I'm just wondering, well, why do we have a 30

day rule? What's -- in what circumstance would that 30 days apply to make a decision

procedurally or substantively, however you want to interpret it, although I think it's a

procedural sort of limitation. I just have trouble understanding why that would

be -- what effect that rule would have. SAIF has got it if you allow people to submit

evidence after the 30 days from a request for a hearing, and I agree that 30 days

request for a hearing was a compromise in between the WRME, I mean between the

IME examination in between the - you know, request or request for the WRME, and so

it was for the conference. It just doesn't really make sense the way that its -- well, the

way that it's written and the way that it's been applied, and so I think it needs to be at

least clarified. It -- I don't really understand exactly where SAIF is at on this. It sounds

like there should be -- they agree there should be a 30-day limit to go to an attending

physician after they know that there's at least a dispute such as a request for a hearing

on a denial, but then I sort of lost track of where -- why they think they should be able

to submit evidence beyond the 30 days, and if they can do that, then what's the point


of 30 days in the first place? So I guess that's sort of my confusion with how the rule is

currently written.

(01:54:27) This is Dan with SAIF Corporation. I believe that 30 days was there so that

WCD could take action on approving whether or not the WRME was -- or deciding

whether or not a WRME was approved, and if they didn't have that 30 days and -- in

here, then when does the time frame end? Do they have to keep going back to the

insurer and saying is there any concurrences, concurrences, or concurrence. So that 30

days gave them an opportunity to take action on the request, but it didn't preclude the

insurer if they received a nonconcurrence from submitting that after that time frame.

(01:55:12) Well, I'm going to guess, was that a problem before the shift in

interpretation of the statute? I mean before, they would deny a WRME within

apparently some period of time if there was no comment by the attending physician.

And --

(01:55:26) And now they affirm the WRME and approve the WRME if there is no

comment.

(01:55:32) Right.

(01:55:32) So -- that I think was getting to what we were looking at in the MLAC

discussions was shifting that to the worker, saying no comment means the WRME is

approved.

(01:55:42) I agree. But before there -- the -- WCD was still making decisions. They

were just denying WRMEs instead of approving WRMEs under the same evidence, and

they didn't seem to require a 30-day window to do that. So I guess if that's the only


effect of that 30 day window, then I guess I don't understand why they needed to add

it in the first place if it was -- if they were doing the same thing, other than just finding

against -- or denying the WRME instead of approving the WRME. Obviously, they

needed to do it under some sort of timeline. So I don't understand.

(01:56:10) It goes back to the previous piece where we wanted to commend insurers

from going to the attending physicians in every instance, and (inaudible) with

concurrence or nonconcurrence requests, but where they're either (inaudible), but the

WRME had been requested. So the 30 days like advancing the (inaudible) speed up the

process or (inaudible), the insurer knew, okay, I need to sort of get these motions and

go through these steps when the WRME has been requested so that everything is

moving along and there's not a delay in that request getting approved and then the

hearing getting postponed because (inaudible) waited 60 days before they approved it

and you can't schedule a WRME 30 days before the hearing is set to occur. So it was

meant to move things along like he was saying and also balance out the insurer's need

to go back to the attending physician, potentially not necessarily in cases where there

had been an independent medical evaluation and a denial based on (inaudible).

(01:57:13) So there's a danger of a (inaudible) being rescinded that has already taken

place?

(01:57:21) Well, I -- this is -- the way this is -- has been phrased, that says -- it sounds

like it's already been rescinded three times. So I guess there is that risk. And then --

(01:57:32) (Inaudible).


(01:57:34) well, that would depend on the facts of the case. Couldn't speak to that

issue, but if the insurer has obtained the concurrence of the attending physician and

provided it to the department, then presumably the attorney, if the worker is

represented, then it would fall to the department to issue a decision on the ongoing

entitlement to the (inaudible).

(01:58:01) Jennifer, Ombudsman for Injured Workers. From -- first a procedural

question. I don't believe WCD waits the 30 days, nor would I ever encourage them to

wait the 30 days to make a decision on the WRME. Or do -- I mean I think that's how

the three got rescinded is that it's being processed. The 30 days from the hearing date,

that whole timeframe that was talked about at MLAC that was a biggie. Where

does -- where does that cushion -- where does our system give the cushion to the

insurer to go get that concurrence without having to pound providers in every single

case? Because you still have to send the WRME. I mean not WRME. You still have to

send the IME to the attending physician. It's just whether or not you hound them or

whether or not they concur with it or not. Right? Because they have an obligation to

respond and sometimes they don't. So the first thing that has to take place before the

WRME can be done is a request for a hearing. Correct?

(01:59:05) Yes.

(01:59:05) And I believe that's why MLAC went with that earlier date because we didn't

want the process to be delayed. So worker requests a hearing on the denial. Turns

around and asks for a WRME because you can't get a WRME without a request for a

hearing. So that time frame has already started. To the best of my knowledge, WCD


doesn't sit there and go, well, we've got to wait 30 days from the request for a hearing.

I might be wrong on that.

(01:59:35) Yeah, they do. We do.

(01:59:37) The rule says that if there's documents demonstrating that they do not

concur --

(01:59:44) Oh.

(01:59:45) -- then they can make the decision.

(01:59:45) Okay.

(01:59:46) But if it's silent, then it's 30 days. Oh, wait.

(01:59:49) From the hearing date. Okay. So possibly the three that got rescinded had a

non-concurrence, and then it flipped to a concurrence.

(02:00:04) Yeah. And I think the issue can come up when either when a decision is

issued, and then after that decision is issued, during the appeal time frame, a

concurrence arrives. And the question is what happens at that point?

(02:00:22) Oh.

(02:00:23) The physician now concurs and the WRME was approved because they did

not concur, but now there's a concurrence. So --

(02:00:31) So then we have the issue that blue-gray, whereas the -- WRME got

approved. Right? And the 30 day period would've expired because you wouldn't have

approved it before the 30 days. And then more information comes in that we're asking

now if we want to put that decision that MLAC worked hard on getting negotiated.

(02:00:55) Yeah. So it's, yeah. If --


(02:00:56) To allow that?

(02:00:58) It -- whether -- what should happen when the physician concurs after the

approval has issued, but during this, you still have an appeal time frame. And what

does the rule require? So even regardless of what the division does that -- that case

can go to the ALJ. The ALJ is going to look at our rules. So should our rule speak to

what happens in that case, whether it is or is not approved, based upon 30 days have

passed from the request for a hearing, and then after that 30 days, a concurrence

arrived?

(02:01:32) Well, I think there's two. There's two because he's talking about the fact

that the WRME actually happened, and I think that's a different scenario to me. So it's

much different to me that hey, it was approved, and it went and it happened. And in

this murky time, right before. I get that, and I think we should probably address that

piece in there and who's supposed to pay and how does that go? That makes sense to

me. But prior to the actual WRME happening, there's a concurrence and -- and it's now

you're done. Like that's -- now it goes back and the whole idea is did you -- did this

thing happen? And the answer is yes. So the WRME is not supposed to go on, and

if -- and you don't need the WRME because you have a concurrence. So there's no need

to incur the cost of the WRME and take the employee's time as that's not necessary

anymore. So I think there is a piece that he identified, which is that really -- like it's a

really (inaudible) where you have a situation where, you know, maybe on Friday it's a,

Hey, we've reversed and Monday is the date of the WRME, and there's no way to stop

that from happening or the doctor is going to bill you anyway. I agree that that should


be addressed, but the other ones for me are all -- that was all considered in there. The

only thing that wasn't considered at the MLAC that I can recall is the scenario that

he's -- that he's brought up.

(02:03:00) Well, you know, I mean so I don't under -- maybe I'm special.

(02:03:03) Oh, yeah, you are.

(02:03:04) But I've requested probably five to six WRMEs since this new rule has

happened. I've had that happen twice where they've -- in the first case, they got - a

decision was made. A significant time after the decision was made, you know, we

scheduled a WRME, and the Friday before the WRME was scheduled, they submitted

the concurrence letter, and the WRME happened anyway, so that happened in one.

There was another case where we won the approval at the department and I guess

SAIF appealed it, but nobody communicated the appeal to anyone, either to the WRME

place, so WRME happened anyway, and then there was a dispute about who would pay

for it and stuff, but the facts go a little bit beyond that. That's certainly a narrow issue

and I agree. I may be the only one to be lucky enough to experience that problem. But

in that case where they got the concurrence right before the WRME and the WRME

happened, that doctor - the AP was eventually deposed on the compensability issue,

and basically, at least, arguably I would say that he reversed his opinion and said yeah,

well, now, I don't agree with certain parts of this WRME; I mean of the IME, and I

know I've had, prior to the interpretation change, I've had a case where the WRME was

denied because there was no comment. I appealed that, and then as part of the

compensability, and while the appeal of the WRME, denial was pending. We deposed


the AP and then sure enough, the AP doesn't concur with the IME, and then at that

point, I mean we're in front of a judge. You know, it's four months past, you know,

when the WRME decision was initially made. We eventually get entitlement to a WRME,

but I don't even know if we actually got one. If we would've gotten one, it would've

been like eight months from when, you know, the denial of the request for a hearing

was made. That's crazy. So a way to avoid that would be, I think that would benefit

everyone -- I don't know if it needs to be from the date of the IME. That seems early,

and if you don't want to send concurrences to every AP, I understand that, which is

why maybe something, a very short period from the date of the WRME request, and if

the doctor is out of town or something – tough. You already probably had at least two

months/three months to get that concurrence, certainly a period of time after the denial

to get that concurrence, but a -- you know, so if something short period, 10 days from

the request would give that sort of last opportunity to get that in the record. And if it

doesn't happen, then there's not a dispute about after the first decision is made, after

the second decision is made, when the judge has it, when it's on, you know, before the

Board. There needs to be a time period to obtain that information. You can't just flip-

flop back and forth forever you know, and that's just not a well-developed system of

delivering what are essentially, you know, benefits to a worker, you know, sort of what

we consider WRMEs when they're necessary. That's what they are. So I think there

needs to be a time limit on when to produce a concurrence, and that needs to be set.

You can't be like, you know, (inaudible) about and (inaudible) and flipped months down

the -- down the road and never really resolved the issue. You know, from my


perspective, if you did have to send a request for comments to AP, and they said, yeah,

we totally agree with the IME, and this is like, you know, within weeks of the IME that

person is going to walk into my office, and I'm like – your attending physician agrees

with the IME, you know. Sorry. You know, and that would be -- seems to make it good

on everyone. I don't know why insurers don't do that all the time, unless they think that

the AP isn't going to concur, and then -- and they're not going to concur later either I

would suspect. So anyway, that's my comments on that.

(02:07:06) So if there's been 30 days, and you guys issue -- approving of a WRME, and

on day 35, you get notice from the insurer that the doctor concurs, do you rescind the

WRME?

(02:07:25) No.

(02:07:26) So you're rescinding it outside the 30 days that was established in the

process? Sorry to say it that way. But that's what it --

(02:07:33) The way the rule talks about -- the way it's currently worded is that when

they'll determine -- the director will determine the worker is eligible if one of these

criteria is met, so at least 30 days. So it doesn't say -- it says at least 30 days. The way

the rule is, it's not listed as a cutoff on evidence.

(02:07:59) (Inaudible). But wasn't that part of the discussion at MLAC? Am I --

(02:08:05) And then cuts it off, right?

(02:08:07) No, it doesn't cut it off. It is. I -- my recollection was that -- I mean, think

about what the purpose of the WRME is in the first place. So the need for it goes away

when you get the concurrence and that was the point. So long as the concurrence


comes in, it's at, you know, then that negates the need for a WRME. And so why do

you continue to have the WRME when you've got evidence that makes it not necessary?

I mean it seems like maybe I'm misremembering the discussions, but that -- it was a

pretty clear part of it to me that once you got that concurrence, regardless of when it

came in, that met that criteria. And so there's no need for the WRME.

(02:08:51) And maybe I recalled with blinders on that the time frame was put into

place, so the worker wasn't jerked around through the WRME process, that, okay, a

hearing is requested. Insurer knows that there's no concurrence. They can decide if

they're going to their provider at that point in time. Worker askes for the WRME, gets a

WRME approved because no concurrence comes in within the 30 days. So I -- and I

do -- I kind of recall the conversation about well, we can just pull out the concurrence,

you know, two days before the hearing, and that wipes out the WRME.

(02:09:36) There was that discussion, and that was --

(02:09:38) Yes, there was.

(02:09:39) The agreement.

(02:09:40) That was the agreement.

(02:09:41) I agree. You know, the original purpose (inaudible) MLAC when the WRMEs

came about the first go round way back when was to ensure that the worker had that

right to request the WRME. We didn't change the purpose of the WRME in this last go

round. The only thing that changed was how you know, at what point in time can they

make that request. But it's still, what if we had that consent with it?

(02:10:06) So who pays for the WRME? The worker shouldn't have to pay for that.


(02:10:10) Well, I think that, that -- if that, you know, timing and everything, I

personally wouldn't have a problem paying for the WRME, the no-show fee or whatever

the fee is if -- or if it had already taken place, I don't think I'd have a problem paying

that, but I can't speak for the large insurers in the room. I operate differently in my

rose-colored -- rosy-colored cloud.

(02:10:29) I wouldn't have heartburn as an employer. If I knew Friday the concurrence

came in.

(02:10:35) Yeah.

(02:10:36) And Monday they had the WRME, and they ended up going to it, I wouldn't

be calling up SAIF going, what the heck are you doing paying for this?

(02:10:41) Uh-huh.

(02:10:42) Because the employee has no ability to stop that from happening. So I

would be the same way as Sheri. I don't know what the insurers would do, but I argue

the same point as an employer. I'd be saying that's reasonable for us to pay for that.

(02:10:57) I can tell you the insurers didn't because that's what happened.

(02:10:58) Being reasonable.

(02:10:59) Pardon me.

(02:11:00) I can tell you what an insurer did when that happened is they didn't pay for

it for a very long time.

(02:11:04) You're right.

(02:11:05) Maybe they paid for it before the Board Review I think, but not during the

litigation for the AOJ.


(02:11:10) No. And I was saying when I started my discussion, I actually think there

should be something that addresses that scenario. I do think that that's probably an

injustice that's occurring that's causing litigation that doesn't need to happen and all of

that.

(02:11:22) Yeah.

(02:11:23) So I'm in support of, hey, if we need to say if the concurrence comes in

within so many days of the scheduled WRME, and there's an inability to cancel that

WRME, or there's a cost incurred, that the insurer is on the hook for that because I'm

okay with that kind of a fix because that addresses. You don't have to argue about it for

months on end, and the employee is not the one who's on the hook for it. That makes

perfect sense to me. The rest I think is stuff that we did talk about and that's why

you -- I'll tell you, I mean I don't know if you remember, but the employers in the room

were actually advocating that this --

(02:12:02) Yeah.

(02:12:03) This isn't right. Like they shouldn't -- this failure for the insurer to produce

something shouldn't go against the employee. You had employers in the room

advocating that, that this is not right. This needs to be switched so that there's some

affirmative things happening here that it isn't just a, well, we could, in fact, do nothing

and then we get this sliding through and they don't get a WRME. We didn't think that

was fair as employers, so that's why we advocated that this change occurred, but we

also, as employers, go look, when a concurrence comes in, it comes in whenever it


comes in, if it comes in. If it's not going to come in, it's not going to come in, and

you've got your WRME. But if it does, that shouldn't interrupt that process if possible.

(02:12:47) Well --

(02:12:48) Our suggestion is to just address it.

(02:12:50) it solves that very narrow issue.

(02:12:51) Uh-huh.

(02:12:52) If you made a rule, solving that very narrow issue, but you know, the idea,

again, going back to it, it should be a streamlined process. At some point, I mean

insurers -- how many times do they need to be noticed that there's going to be a

dispute, whether it's denial or a request for a hearing or a request for a WRME. At some

point, they should just talk to the AP, and if they don't, by a certain period of time, then

that should essentially be conclusive as to the entitlement of a WRME, so the process

can move on. So the hearing isn't delayed later. I mean I've had to delay

compensability proceedings to fight about WRME issues, which sometimes that's okay,

but let's minimize that and give -- like I said, ensure plenty of notice, and I don't know,

you know, there's options to do that with time periods and submitting evidence and

obtaining concurrences. But if they have the notice and they don't do it, then, you

know, I don't know. I guess I don't have a lot of sympathy. I come from, you know,

one side and I recognize that. You know, I don't -- I will take issue with the -- I mean

the employers were sort of on the side of and I'll comment, but that didn't just

magically appear at MLAC. That issue was brought up primarily by myself after about

four years of litigating that issue -- three years of litigating that issue. Because I was


having judges decide that this is how the statute was written and interpreted and the

WCD decided, well, yeah, we need to take a look at this and redo it, we came to MLAC

to change the entire rule because we thought, -- I thought maybe the statute wasn't

clear because there was a conflict between what the judges were saying and what the

WCD was saying, but I don't see it as a compromise, again my perspective. I see it as

the way the statute was written, you know, not perfectly clear, but pretty clear, pretty

unambiguous and so I don't think it was this, you know, give and take sort of analysis. I

think we just made up rules. Now that it was, can be interpreted like this. Let's put a

time limit on it. Again, if there's no time limit to submit a concurrence, then don't even

have a rule at all about it. Just go back to the Old West, and you know, say, all right,

well, yeah, we've made our decision, the WRME happened or it's about to happen, and

you know, we cracked it. I think it'd be very -- it's too narrow and too fine-tooth just to

prevent that particular situation from happening. We want certainty in the system. Give

the insurers notice -- plenty of notice about that they need to get in the quick

concurrence, and then once they're done, like every other evidentiary requirement,

whether it's a hearing, whether it's a Board Review, you know, whatever, the

reconsideration order, you know, medical disputes, vocational disputes,

reclassifications, there needs to be a period of which to point -- put the evidence in the

record and be done with it. And then that would streamline the process. It's not like

people aren't having opportunities to talk to the AP. You can write as long of a letter.

You can talk to them on the phone. You could write the letter for them. You know,

we've seen all those variations. And that would just -- that -- now people know they


have entitlement to WRME, they can get it, and move on with the underlying issue and

that's it. That's just the most efficient way for everyone to sort of avoid protracted

litigation and disputes over what is essentially a conditioned precedent, you know, to

the evidence in an underlying compensability dispute.

(02:16:16) Ted, what I'm hearing -- can I just say one thing, Jennifer. What I'm

hearing you say is something that goes on in California. So I don't think we want

the -- to come AME, QME what have you. That wasn't ever the intent of the WRME. It's

a very narrow use of this medical exam. So what you're saying really is it's kind of

resonating with me as being something they do in California. So I just want to put that

on the table. I think that yes, the rule needed to be enhanced, and I think, you know,

they did what they needed to do, and if we need to do some tweaking for these narrow

areas, but I don't think the purpose is to change the whole rule. And I'm just a little

uncomfortable with what you're saying, and I just want to go on the record as that. So

as everybody knows, I like to speak up when I'm uncomfortable. I'm uncomfortable.

(02:17:16) Ted, you mentioned do away with -- even just doing away with the 30-day

rule and I might've had -- I might've been misguided here in my own head. Does

that -- now, it seems like that 30-day rule the days is what give WCD the trigger for

when you can approve a WRME when there has been no response. If that 30 days went

away, when would WCD be able to decide? I think that's possibly now why the 30 days

was put in there as to give that little bit of a window and certainty as to when should

WCD act on this when nothing has been received. Because if the 30 days went away,

we may be approving more WRMEs, but we may have a lot more recensions.


(02:18:06) Yeah.

(02:18:07) That's where I'm going.

(02:18:09) Coming in and --

(02:18:11) And then we get into a whole different world.

(02:18:15) Because if the -- if they can submit a concurrence at any point in time, I get

why you're saying, well, then why have the 30 days? But maybe that 30 days was for

procedurally when WCD could actually take action and not slow down the process for

the injured worker.

(02:18:33) Yes.

(02:18:34) So I hear it like too -- I mean I have two questions. One is, you know, 30

days, so it allows the WCD to make a decision, at least initially on a -- a WRME

decision, based on having no comment in the record, except that that 30 days was

enacted, you know, along with just sort of reinterpretation, and they weren't, I mean

they were still making decisions prior to that. They were just making in the opposite

way. They were denying WRMEs because there was no comment in the record, and

they were doing that on some sort of time basis. I don't know what that time basis was,

but they were certainly doing this. So I don't -- so the 30-day period for that doesn't

seem -- that can't be the only reason for it. They were doing it before that 30-day

period.

(02:19:16) But it -- but I think that that's one reason why we looked at the rule and

said what we were doing, in my opinion, what we were doing before and defaulting to


no WRME wasn't equitable. So although I appreciate saying, well, if they did this

before, why can't they do it this way now? I understand that, but I kind of like --

(02:19:36) I understand.

(02:19:36) You said that that was bad.

(02:19:38) But okay. So they (inaudible). I don't know. If that was the sole purpose, I

don't understand why it was necessary. The second question though, I hear you say is

well, you know, now there's some sort of-- now it'll take less time to submit a

concurrence (inaudible). Now, they get a decision out by 30 days or 30 days have run,

but it doesn't limit them to submitting a concurrence. I mean this happened again in

one of my cases, and there's certainly nothing preventing them in the rules from just

rescinding it and considering that evidence, even though it's well beyond the 30 days

from the request for a hearing and then denying the WRME on reconsideration, which

then, you know, is basically the same thing that would happen before the 30-day

period. They'd make a decision. Someone would go get a deposition on the underlying

compensability, this or that or a written concurrence, and they would either reconsider

or a judge would reverse their order because the evidence was now there, one way or

the other, and I've done it. I've seen it happen both ways, the concurrence or

agreement or disagreement. So the 30 days, I can't see the effect of it. It has literally

no effect from my client's' perspective, from my perspective, the way that it's been

interpreted and applied. Doesn't limit the time that we can put in evidence. It doesn't

limit -- it doesn't mandate a decision within that 30 days. Just says that they could do

it. It's characterized as sort of an eligibility requirement, but not really and sort of


mandatory language, but then, you know, because of A and B, and it's not an eligibility

rule, which is right above it. So I guess I just, you know, I don't understand the

practical effect of the rule, and I do -- I thought I understood why it was put in there to

have a practical effect, but I thought it was an evidentiary limitation for a decision to be

made. At a certain point, if there was no evidence in the record, I didn't anticipate not

having an effect later down the road, but they can put it into evidence after that, and

then they just changed their decision. So that was my sort of interpretation or

perspective when the rules was made, my recollection of it anyway.

(02:21:41) So if the WRME -- sorry guys. If the WRME took place and a report was

done and then the WRME got rescinded, is that admissible for the hearing process?

That meaning the WRME report?

(02:21:53) We haven't found out the answer to that yet. I've seen that argued, but I

did not -- we did not make the judgment.

(02:21:58) (Inaudible).

(02:22:00) Yeah.

(02:22:07) Anybody have any additional comments on this one before we move on?

(02:22:13) Hello, this is Daedra from PPS. I'm just kind of curious after listening to a lot

of this. If there's even the thought that if a request for a WRME has been submitted,

that perhaps you -- the -- the State has a step that before they grant it or schedule it

within that time frame that a letter, you know, that the State actually issues a letter to

the attending physician, requesting or demanding their response, and see whether or

not that warrants a response. I mean there are certainly times when, you know, you


just can't get a doctor to respond in a timely fashion. It -- some doctors are worse than

others, but, you know, maybe if it came from the State indicating that there would be a

penalty for nonresponse within that time frame, maybe in those circumstances at least,

the, you know, the medical providers would actually respond, and maybe that would

alleviate the -- at least some of those scenarios.

(02:23:09) So, yeah, this is Lou Savage. I'm shaking my head, so you might as well see

it. I don't think that's the State's responsibility. I guess I would -- I'd be hard-pressed to

hear an argument that would convince me that the state ought to be doing that.

(02:23:26) Yeah. And I would like the -- I mean look, I get frustrated like everybody

else does with providers not giving stuff that we need to process our claims, but I'm

going to be the first person that says we're not going to mess with the doctors. We

need them in our system. We really do. And penalizing them is just going to cause

fewer of them in the system and we need them, our workers need them. So I'm not

going to be -- it would have to be some really rare circumstances where I would be

advocating to penalize the medical community. I'd love to if we could do it and keep

them in there, but I don't think that you can. I think you'd lose even more providers,

and that's a bad result.

(02:24:11) I'm also curious in these situations, how many of these providers are MCO

providers versus outside of the MCO? Because I personally don't have these issues, but

we 100 percent of the time enroll workers into the MCOs. So I don't know. So again,

I'm in my rosy-colored world.

(02:24:32) (Inaudible).


(02:24:33) Okay. Good.

(02:24:32) We typically do not enroll until claim acceptance.

(02:24:37) Okay.

(02:24:38) So (inaudible).

(02:24:39) We do.

(02:24:40) (Inaudible). These claims wouldn't be subject to the MCO.

(02:24:41) Okay.

(02:24:43) So, you know, that -- and we enroll right from the get-go, unless, you know,

absolutely, it makes no sense to. But -- so my rosy-colored world.

(02:24:54) Yeah, unfortunately, I can tell you that just because somebody's in an MCO

doesn't mean that the doctor is going to respond.

(02:25:00) Well if you have an MCO to assist, (inaudible).

(02:25:06) It doesn't work as required all the time I'm just going to say.

(02:25:11) One last question. Do we know how many WRMEs approximately we get on

an annual basis? Requests? Oh, there you go.

(02:25:18) There was 170 last year.

(02:25:22) There's going to be over 200 people.

(02:25:23) Okay. Do you know before it changed? So what was that? Seventeen? So

how many did we get at that point in time? Do you know when they -- when we made

the change?

(02:25:31) Saw over 120.

(02:25:32) (Inaudible).


(02:25:34) So it really hasn't gone up.

(02:25:35) That's really good.

(02:25:36) Yeah.

(02:25:38) (Inaudible).

(02:25:38) Yeah.

(02:25:39) A little bit.

(02:25:40) Almost, yeah.

(02:25:41) The 200 (inaudible). Yeah, that's good.

(02:25:45) Yeah. Yeah.

(02:25:44) So close to -- close to 300 WRMEs and only three have encountered this

problem then in that two-year period.

(02:25:52) Yeah.

(02:25:53) That's a really small number, and I think that speaks to it working well.

(02:25:58) Yeah.

(02:25:57) But we really need to (inaudible).

(02:26:00) I would agree with that.

(02:26:01) And again, I can only speak for SAIF. In the one case that I'm aware of, we

did pay for the WRME exam because we determined that it wasn't the WRME

physician's fault that there was a change at the last minute. We thought it would only

be applicable if we go ahead and pay for that.

(02:26:20) How much are those, just out of curiosity? I don't know what that bill is.

(02:26:25) I'm not sure. There's a specific fee schedule.


(02:26:26) Okay.

(02:26:27) And so it really varies, depending upon the; physician that it's scheduled

with. It could be anywhere from a few hundred to many tens of thousands of dollars.

(02:26:38) Okay.

(02:26:39) Do people around the room agree that the division has the authority now to

determine who would pay in that situation, or when -- or would-- but would we need to

adopt a rule that indicates who would pay in the situation that you had mentioned,

Kimberly, in that kind of short window where the WRME has already been scheduled or

even attended?

(02:27:05) I have no idea where they have the authority. I'm not against you having it.

But I guess --

(02:27:17) (Inaudible).

(02:27:18) My guess is that those insurers who were not paying for those instances

where he had to fight, I'm guessing they're not sitting in this room. And so I --

(02:27:33) He's not saying, it looks like.

(02:27:34) I don't --

(02:27:36) Do you want me to?

(02:27:39) Um --

(02:27:40) No.

(02:27:41) So I mean -- I guess I don't want to create more litigation, but I just hate

doing that. So --

(02:27:48) I don't know. I don't know how that goes.


(02:27:51) Well, you know, WRMEs can cost a whole bunch of different things. If I told

one of my clients, well, we're going to schedule you for this, but if something changes

right at the end and we don't get you notice in time, you could be on the hook for tens

of thousands of dollars. These are people who cannot pay their car payments, cannot

pay their house payments. I think there's also -- we've got to think about the doctors.

You know, I think we don't have enough doctors in the system, and a lot of doctors get

turned onto the system through work because it's a way to make money, you know, to

learn a little bit about comp, and sometimes how, you know, we get doctors interested

in becoming APs and being more involved in comp. So I think not having a set date

whereas of this date, the exam is going through. Doctor, you're going to get paid your

full amount. You know, fighting about it for months is not only bad for the claimants

and maybe makes them not as willing to request a WRME because of fear they might

have to pay, but also the doctor's uncertainty during that bill. If that doctor had to wait

eight or nine months for an exam that had been set up, I'm -- if I'm that doctor, I'm not

doing these anymore. Forget it. And so I think, I mean for me personally, there needs

to be a cutoff date. I agree with Ted that there should be a certain period of time that,

you know, you get your evidence in by then or this is what it is. Just like with recon.

There's a deadline to get in evidence and -- but for sure, by the time that that

appointment is set and the doctor up a time on that schedule, I think it's only respectful

to the process of the doctor to follow through with what the agreement was at that

time.


(02:29:21) I think if it's canceled -- I mean we can all cancel our doctor's appointments

if there's sufficient time and you're not on the hook for that. So I think so long as

there's sufficient time and you have to figure out what that time frame is, I'm not if the

IME is set for three weeks out and it gets reversed, if you're not on the hook for that

IME, I wouldn't agree to that, but in the time frame where it's -- look, there's really no

way you can cancel this, the doctor is, you know, not going to be able to book his

schedule up and all that, then that's a different story for me, and I think that's the time

frame I would be agreeable to, but – Lou, is it – do you think that you have statutory

authority to do that, to make that decision? Or are you thinking that's --

(02:30:05) So that's why I threw it out to the group.

(02:30:07) Yeah.

(02:30:08) I mean I think that's – I would not be opposed to seeing, you know,

statutory language if it requires statutory rule. I wouldn't be opposed to looking at that

under statutory.

(02:30:20) Not at all.

(02:30:21) Yeah.

(02:30:22) I wouldn't be opposed to looking at that and seeing what kind of language

we'd want to have. And I think --

(02:30:29) I'm not sure what you mean by more statutory authority. I'm just wondering

whether we put it in a rule.

(02:30:34) Yeah. I think (inaudible). But --


(02:30:42) Okay. Any other final thoughts? All right. We will move on. We're on issue

17, and this is related to the time to pay temporary disability benefits under rule 0150,

section (4). The rule does not clearly explain when temporary disability is due to be

paid if the insurer previously paid temporary disability benefits, but authorization for

those payments ended for more than 14 days. And so section (4) of the rule outlines

the timely payment. It was substantively rewritten back in 2017 to describe first

payments and subsequent payments. And so it -- subsection (a) explains first payments

of temporary disability are due within 14 days of certain events, which are described.

Subsection (b) explains that subsequent payments must be made at least once every

14 days, unless the employer is making a payment for -- under rule 20. Subsequent

payments must include all benefits due for the period ending no more than seven days

before the payment date. And so occasionally a worker's entitlement stops and then

restarts at a later date, and if that's more - a gap of - the -- if the gap is created for

more than seven days or more than 14 days, the rule doesn't clearly address that

situation. So trying to look at options that would fix that. We could create an exception

in the subsequent payroll. And so that would include adding a new section of the rule,

basically saying temporary disability is not due and payable, and that it has to be made

every 14 days, unless it's not due and payable within that 14-day period, but it

subsequently becomes due and payable, in which case, it has to be paid within 14 days

of one of these qualifying vets that I talked about in subsection A, which outlines when

first pays are do. Or another option could be to include all benefits due for the period

ending no more than seven days before the payment date. Oh, sorry. That was part of


several. The other option would be to eliminate reference to the first pays under

subsection (a) and then modify the section (4) to define what must occur with first

payments. So basically saying the first pays have to be timely. The first pay is of the

time loss on a claim must also include all benefits due as of the date of payment, unless

there's reasonable basis to exclude those benefits at the time the payment issued. And

so that in conjunction with removing the word first in subsection (a) would give that 14

day trigger for those stops and restarts of the time loss benefits. Any thoughts? I see

people looking.

(02:33:58) (Inaudible).

(02:34:01) Yes.

(02:34:02) I think removing first is the simplest way --

(02:34:05) Uh-huh.

(02:34:07) To make it make sense to those adjustors that are processing. It's like the

first payment is here and then the rest of it is, there's your bullets. I don't process

claims either so I'll leave it to you.

(02:34:25) I'm sorry. I got lost somewhere.

(02:34:28) So this is about the subsequent payments when there's breaks between?

(02:34:33) Yes.

(02:34:34) Yeah, because basically, you pay every 14 days, but what happens if you

don't -- if you're no longer entitled to time loss, and then three months later, you

become tight -- entitled again. When does it have to start again?


(02:34:43) And this is saying that it's due 14 days at the beginning of that (inaudible)

period?

(02:34:51) Currently, the rule says first pay is due within 14 days of certain stuff.

Subsequent payments are due every 14 days thereafter. So if you have a three month

gap where you're not entitled to time loss, it's arguable as to when that next payment

starts. After that three month gap, when is that payment supposed to start? And so

clarifying in rule when that payment would be -- supposed to be starting.

(02:35:17) Clarification. Is it in the 14 days from the day of disability (inaudible)

disability period begins?

(02:35:22) Yeah. And so the clarification options are basically -- both, I think

accomplishing the same thing that basically, you have to start within 14 days again

from when something triggers that to start. But it's just two different options for how

to, I think, accomplish the same thing.

(02:35:38) So I have a question.

(02:35:40) Wait.

(02:35:41) Go ahead.

(02:35:42) Oh, I was going to say, what's the difference between the first payment? Or

are you trying to say that that's not a (inaudible)?

(02:35:45) Yeah, so for first --

(02:35:46) Would it be like a first subsequent payment kind of thing?

(02:35:48) Exactly. What there -- because there's different arguments now, but

whether -- can you have more than one first pay on a claim, and this -- this would


basically take the position you have your first pay, then you have all your other things,

and all your other things are you have to pay every 14 days.

(02:36:04) I was -- I mean just speaking like from handling claims for years, I think

that most people think about first pay as that very first payment.

(02:36:08) Yep.

(02:36:09) Uh-huh.

(02:36:10) And that's it. And so leaving it as the first pay as the first, I mean other

people that who've handled claims can speak to that. But I consider that one a

subsequent payment.

(02:36:20) Uh-huh.

(02:36:19) I just -- it's a restart, you know, and you just kind of know that it's due in 14

days.

(02:36:24) Uh-huh.

(02:36:25) But you don't consider it their first pay.

(02:36:27) Okay.

(02:36:28) So my question was is this rule just covers like gaps in entitlement, not

talking about resolving arguments over retroactive benefits. Right? That's a different

rule.

(02:36:40) Correct. Yeah, this is just when are you supposed to issue the time loss

check.

(02:36:44) Right. So the -- you get a period of, I'm curious, temporary disability if they

pay it, then a release to some sort of, you know, maybe regular work, but then they


have surgery down the road. And so this is when you're starts -- paid from surgery,

right?

(02:36:57) Correct.

(02:36:58) There's no dispute about like this period when they're released to regular

work.

(02:37:02) Correct.

(02:37:03) Yeah.

(02:37:03) Yeah.

(02:37:04) And then (inaudible)?

(02:37:09) Correct. So the first pay does not allow arrears. Subsequent pays do allow

arrears. And that's the --

(02:37:19) (Inaudible).

(02:37:19) Dan from SAIF Corporation. Just to confirm, we view a first pay as the first

pay, and because we have to report the timeliness of the first pay, if we're reinstating

and we're making a subsequent initial payment based on a triggering event when there

hasn't been authorization, one, that's not a first pay. And I want to clarify it's not a first

pay because I don't want someone to say, Oh, now; you need to be reporting the

timeliness of that. And then also the week in arrears on that subsequent payment can

be established with the initial subsequent payments and not, well, you have to pay that

(inaudible). So long as the rules are clear to that, it is how we've been managing those

claims.

(02:38:04) Uh-huh.


(02:38:06) So when paying benefits.

(02:38:08) Uh-huh.

(02:38:07) And we --

(02:38:09) Okay.

(02:38:10) And I think the auditors too, (inaudible), that we would look at that as a

subsequent, a restart as a subsequent?

(02:38:15) Yeah, they're (inaudible).

(02:38:18) Yeah.

(02:38:19) Yeah. Yeah, and both of the options, I think, accomplish that as far as first

pays are first.

(02:38:24) Oh.

(02:38:25) There's only one, and then subsequent pays either just saying that it's under

one of the qualifying events or that you just have to be making it within the 14 days.

Okay. Any other comments? Move on? We are going to do one more and lunch.

(02:38:49) This is a short one.

(02:38:50) Questionable. Probably short.

(02:38:54) (Inaudible).

(02:38:55) Okay. We'll do one more and then we'll break for lunch. So we're on issue

number 18. This is under rule 0155(1)(a). It's about penalties. So again, in 2017

change it inserted to the worker in the rule after referring to a penalty of up to 25

percent of the amounts then do, and so there was the concern whether that's

inappropriately limiting issuance of penalties under .262(11). And so the rule says if the


insurer unreasonably delays or unreasonably refuses to pay compensation, attorney

fees, or costs or unreasonably delays acceptance or denial of a claim, the director may

require the insurer to pay a penalty of up to 25 percent of the amounts then due to the

worker, determined by the matrix attached to the rules. And so it's not clear as to are

the penalties what are payable to the worker, or is it the amounts then due to the

worker that are the basis of the penalty. And so the latter meeting seemed contrary to

.262(11) because compensation includes medical and vocational benefits. Unreasonable

refusal to pay or to timely pay for those benefits could subject the insurer to penalties

under .262(11). So the thought was whether to remove to the worker, but insert

equivalent text earlier in the sentence. So it would read, the director may require the

insurer to pay a penalty payable to the worker of up to 25 percent of the amounts then

do, determined by the matrix. No fiscal impact expected, but curious on thoughts.

Anybody have any feedback?

(02:40:34) I agree. I think it makes it clearer.

(02:40:36) Yeah, okay. So go to lunch.

(02:40:39) (Inaudible), so it makes sense.

(02:40:41) Uh-huh.

(02:40:41) The statute. (Inaudible).

(02:40:43) Okay. And I think we will take a break and finish up the final issues after

lunch. We'll be scheduled to return at one o'clock and start back up. Thank you,

everyone.



WORKERS’ COMPENSATION DIVISION Durham - Meeting Room

Transcript

Part 2 of 2

(00:00:08) All right. Hope everyone had a good lunch. Thank you for coming back to us

afterwards. And like I said before, thank you again for everybody's feedback and

comments from the discussion. It's been really good to have that dialogue. And so I

appreciate that very much. We're moving on to issue 19. This one is out of rule

155(1)(a)(A)(ii). So subparagraph two of the rule in short just appears to be

unnecessary. It explains that the director may assess a civil penalty under rule 0200 if

the worker has not provided sufficient information to assess the penalty, but the

language is unnecessary because under rule 0200, section (3) -- I'm sorry, under rule

0200 and under section (3) of rule 0155, there's authority for the penalty. So it seemed

like subparagraph two could be deleted, but we wanted to bring that forward, get

people's thoughts. We don't expect any impact because it shouldn't be a change of any

procedure, just that it's a duplicative statement. Anybody have any concerns? Okay.

Hearing none, I will move on. Issue 20 relates to the response time frame for insurers.

So when the director notifies an insurer of certain disputes, the rules articulate the


timeframe for a response at 14 days or 21 days, depending on the rule and the

situation. When the inquiry relates to a penalty to the worker for untimely processing,

the response time is 21 days, and that may unnecessarily lengthen the time it takes for

WCD to obtain records in order to issue its decision. In in the background here, we give

an outline of when 14 days is the timeframe for a response versus when 21 days is the

time frame for a response, and like I said, this is -- the situation we're talking about

here is when the request for a penalty goes to the worker for untimely processing. It

can be compared to situations like an MRT dispute where they're providing more

records and getting 14 days to respond where this is a more narrow issue with a 21-day

response. So the question was, or the issue is whether we should change the rule to

provide the insurer 14 days rather than 21 days to respond in these situations where

the request for documents related is related to a request for a penalty to the worker for

untimely processing or if the rule should remain as is.

(00:02:48) Do we know why (inaudible) allowed 21 days in the first place and not 14

days? Assuming it was a deliberate decision.

(00:03:03) I do -- I'm not aware why it was 21 days initially.

(00:03:07) Because I guess our concern to me in just looking through these, in some

cases, it's simply providing records.

(00:03:13) Uh-huh.

(00:03:14) And the request is simply send us the records within so many (inaudible), so

many days, which okay, 14 days is reasonable. But in so many situations where if it's 21

days, it's send us the record and respond to these questions. So the response to


questions when it is 14 days from the mailing date and we may not receive it until the

third or fourth day, that's shortening our time frames, and we might have to gather

information whether it's internally or go externally to obtain information. So just

wondering without knowing the intent of the 21 days, maybe it was because these

types of issues, there's more fact gathering that the insurer needs to do, therefore, a

longer timeframe in order to gather that information and provide it. So I don't want to

shorten for everyone to 14 days and then provide incomplete responses to the

department.

(00:04:10) Uh-huh. And my understanding is these responses tend to be more narrow

in what needs to be provided for this rule, but that could be something we're confirming

and reviewing just to make sure.

(00:04:31) And this is Jovanna Patrick. I've switched to being on the phone for this part

of it. But, you know, I think that consistency would be helpful, especially I think with

insurers, they would prefer consistency to just know it's always 14 days, and so

reducing to 14 days for everything should make more sense and could also help deliver

the benefits and the decision to the claimant more quickly. Thank you.

(00:04:58) So from a consistent standpoint again, maybe it should be 21 days. Maybe

14 days is too short when it's 14 days from the mailing date, and as other people has

pointed out, sometimes it's seven days before you get the mail, so that provides seven

days to respond, so maybe 21 days is reasonable.


(00:05:18) And just to (inaudible) the discussion, what is being asked of the insurer in

these situations is to give the reason for the delay and any additional information or

documentation that's being requested associated with that issue.

(00:05:33) So it's not necessarily a complete answer, but can you tell us why there is a

delay?

(00:05:38) Correct. That's asking for that reason.

(00:05:41) So if we provide incomplete response, but we do respond in 21 days or 14

days, is the insurer going to be penalized for providing an incomplete response, but a

response because failure to respond in these time frames is a resulting in civil penalties,

and it used to be, our response is a response, and now it's our response and is it

complete. So not saying there's almost a double jeopardy, but there's a double jeopardy

in a lot of these situations where if your response is incomplete, then you get a 500

dollar penalty for not responding completely, just because you responded timely.

(00:06:21) Is that a recent change?

(00:06:26) It's a trend we've been seeing. I don't know when it happened.

(00:06:30) Is the reason for the time frame in and of itself, like is it, are you waiting for

a response from the insurer to know what action to take next on behalf of the worker? I

mean obviously, I'm interested in shortening the time frame up for a worker if they're,

the longer this is, the longer they're going without benefits, but I don't know enough

about the process to know what this means.

(00:06:52) So this isn't a penalty situation. So when the allegation is in short or you

didn't do this correctly, and so I worker, I'm entitled to a penalty because of your


failure to do this correctly, and then the insurer would be needing to say, this is why we

did it this way and here's the documents associated with that. And so the time frame of

14 versus 21 just, you know, depends on that is how long it takes for us to get the

information so that we can then turn around and do something with that, issuing an

order to say, yep, there's a penalty or no, there's not a penalty in this situation.

(00:07:30) Are most responses closer to the 21 days than earlier?

(00:07:35) Soo in about a year and a half period, one year eight months there were 87

cases that fell in this pool. 30 of those cases, no, they weren't -- they had 21 days to

respond.

(00:07:50) Right.

(00:07:51) But happenstance, 30 of them responded within that 14-day period, four

were on the 15th day, 13 were less than 20 days, 16 of them were at the 21st day, and

12 were late.

(00:08:07) And what was the penalty for being late? Did that 500 dollar --

(00:08:12) I don't know off hand. But --

(00:08:13) I think that is the starting penalty. Yes.

(00:08:20) I think for claims (inaudible) when we're talking about penalties, we want to

provide complete and accurate information, and in particular for more complicated

claims, it can be time-consuming to go through all the records when we have these

voluminous files. We don't want to send duplicates to the department. We want to get

them the most up-to-date and complete response, and that can take time on the

adjuster's part, or if there's been a change of adjusters, it sounds like from the numbers


too, there are varying times of when the insurers are able to get their responses in. So

you know, given what's at stake here, this penalty, which is an important issue that

insurers be given that full-month time, that 21 days to gather that information and get

it to the department as opposed to shortening it, and perhaps create a situation where

we're giving partial responses because of that shortened window. This makes it more

cumbersome.

(00:09:24) Anyone else have thoughts, feedback on this?

(00:09:29) Well, I appreciate the -- well, one thing is, is that if a response, just any

response was going to be sufficient to avoid a penalty, then we could go back to those

days where it's like, because I'm still working on it, you know, without any clarity, and I

think the department was wanting more than just a, here's my response, which is a

non-response, but it gets me out of my penalty. Just being strict. Right? But I also can

appreciate the fact that just providing the documentation and not fully vetting it, may

not be the best for either side to get what's the truth and what took place regarding

that type of an issue. I don't know if say or make it -- I'm looking around the room and

see who all is here. How, if you have any data regarding the amount of time it -- what's

a reasonable time to consider it? I don't want to have everything go to 21 days,

obviously. Right? But for this type of a response, it is a penalty process, not necessarily

a benefit process. So keeping that in mind that it's not the worker going without

benefits, but it is a penalty for poor processing. So for myself, that falls into a little bit

of a different bucket that the longer delay isn't a delay in receiving benefits, hopefully.

Right? Because it's just on late.


(00:11:14) Just I think it's just for penalties.

(00:11:15) Just for penalties?

(00:11:16) Uh-huh.

(00:11:17) But I don't know what that magic number is. If we can name that field 14

days, the sooner we can get stuff done the better off it is for everybody, but if that

creates not adequate responses or fully vetted information, then I don't think that we

are making any headway with the issue.

(00:11:50) Okay. Any other comments before I move to the next issue? All right. We

are on number 21. So an insurer can be liable for a 25 percent of the amounts then do

if they unreasonably delay or refuse to pay compensation, attorney fees, or costs. Now

that ability to award the 25 percent penalty for attorney fees and costs was added into

the statute in 2015 after house bill 2764 had passed. The rule on dispute resolution

says that stipulations have to specify the amount of the penalty, and that penalty

cannot exceed 25 percent of the amount of compensation delayed. So it leaves out

attorney fees and costs. And, the statute explicitly refers to compensation as being

separate from attorney fees and costs. So the issue is whether we should amend the

rule to reference that the penalty cannot exceed 25% of the amounts then do under,

which either references the statute under .262(11)(a) or review or changing the rule to

say compensation, attorney fees, and costs delayed. Both I think would accomplish the

same thing, basically modifying the rule to its current state, which is allowing 25

percent of the amount of compensation delayed to broadening that to be 25% of the

amount of compensation, attorney fees, and costs delayed or something else if people


have other ideas on this issue. And for this I'm trying to remember to make mention of

the fiscal impact, but, of course, on all of these, let us know. We don't anticipate any

substantial fiscal impact to results since the change -- rule change only relates to what

is required for settlement, and it brings the requirements in line with what could've

been achieved during litigation, but we, of course, welcome input as well.

(00:13:46) Kevin Barrett from SAIF. So option, I guess two, both (inaudible) attorney

fees and costs delayed, it seems like it might be unnecessary. If you look at the whole

text of the rule, sub (a) talks about the benefits of attorney fees or costs and

(inaudible). So in referring to .262(11)(a) might be sufficient, but if we're just talking

about what's supposed to be in the stipulation, sub (a) already describes what you're

trying to put in sub (D), the benefits, attorney fees, or cost delay.

(00:14:24) Are you looking under -- just so I can follow along here. Are you looking

under (6)(a)?

(00:14:27) Yes, (6)(a) sub (A).

(00:14:31) Yeah. So (6)(a) sub (A), so it's -- the stipulation must specify the benefits,

attorney fees, or costs delayed and the amounts, and then (6)(a)(D) currently seems to

limit those to 25 percent of the amount of compensation where conceivably, there could

be – the amount could be more than 25 percent of the compensation because

compensation being different than the attorney fees and costs.

(00:15:01) But if you repeat it without defining it as compensation delayed, it may

sound like there's 25 percent on the attorney fees awarded at that time; sort of double

attorney fees.


(00:15:10) I see what you're saying under A and D. (Inaudible) okay.

(00:15:17) The conversation has been defined by the statute.

(00:15:20) Uh-huh.

(00:15:19) But it seems unnecessary.

(00:15:21) Okay.

(00:15:28) This is Jovanna on the phone. I think that'd be the second language with

adding the attorney's fees and cost delays does make it clear. It makes more sense for

the statutory change of moving from just compensation to adding attorney's fees and

costs on both sides for penalties and other matters, and I think because it says delayed,

I'm not so concerned that it would appear that an attorney fee arising from that

particular order would have a 25 percent attorney fee because -- or I'm sorry, a 25

percent penalty because you're talking about the delayed attorney fee. Well, if you

didn't pay the attorney fee the claimant has to go to WCD to get it, then the claimant

should be entitled to a 25 percent penalty of that delayed attorney fee, not any

additional fee that might be paid for that pending dispute. Thank you.

(00:16:26) Any other thoughts? Okay. I'm going to move on. Number 22: So this

relates to wrap-up project names in the Form 1502, and this is rewinding a bit in our

rule numbers to rule 0011. The division does not require the project name for a wrap-

up policy, and as a result, our claims data does not always reflect accurate information

on that. So for employer coverage purposes, a wrap-up project is considered to be the

employer of all workers contracted to perform labor on the project under the wrap-up

policy at one location, and insurers often report claims on the form 1502 under the


contractor or the subcontractor name without any notation about the claim being part

of the wrap-up policy, and that would arguably be inconsistent with rule 0011(4)(b),

which requires the insurer to list the employer's legal name and the employer's policy

number, but when the division is unaware of the involvement of a wrap-up policy, it can

cause the inaccurate information to appear. More specifically, an employer may appear

to have more claims than were actually made, whereas a wrap-up project could show

fewer claims than actually occurred, and if we required the wrap-up project name on

the 1502, that would alleviate that issue. So by modifying the rule and the form 1502 to

include the wrap-up project name if the claim is in fact from a wrap-up project, and we

had provided some draft language in the rule, under rule 0011 to do that.

(00:18:04) So we do. Hoffman Construction, we do wrap-ups, significant in number of

them on a regular basis. So I want to make sure since this is a very specific area of the

law that not a lot of people are familiar with that I understand what it is you're doing.

(00:18:24) Yeah. And so the rule language the proposal that we have right now would

be under -- for each form 1502 the insurer files, they must include at least the following

information. We've got a whole laundry list of things, and it would be adding a new

item that says the wrap-up project name if the claim is from a wrap-up project.

(00:18:46) So that responsibility falls on the insurer completing the 1502 form, not the

employer.

(00:18:51) No, I get it. Yeah.

(00:18:54) Uh-huh.

(00:18:55) I just -- I --


(00:18:55) Because what do you do with your 801s when it's wrap-up?

(00:18:56) Our 801s, you know, forever, since we first started having to be approved

by the State of Oregon for wrap-ups have to include the name of the project, the

program.

(00:19:07) Uh-huh.

(00:19:06) So it makes -- I'm kind of perplexed why we didn't do the same for other

documents related to that claim. I don't think that -- I don't think the comments about

claims, what any kind of -- I don't think there's any kind of, you know, something going

on in so far as that people aren't reporting them appropriately or I -- we've had some

issues with – because there are so many of us where they -- where -- and there's so

many CIPs that it -- there's some confusion at times with what project is what project

by the carrier. So that's why the 801s should be very specific as to what the program is,

and then the insurer of record should not get confused and should be able to transfer

that project over to the 1502. But you guys are aware of involvement in a wrap-up

because you guys approve it. So -- right?

(00:20:12) Yeah, we do.

(00:20:14) Okay. I just want to make sure.

(00:20:14) But there many, many -- yeah

(00:20:16) There isn't -- that -- that you guys are approving those?

(00:20:18) Yes. Well, DFR approves them, but yeah.

(00:20:22) What's DFR?

(00:20:23) I'm sorry. The Division of Financial Regulation.


(00:20:24) Oh, okay.

(00:20:25) Yeah, and we do. But -- but like you said, there are so many.

(00:20:28) Uh-huh.

(00:20:29) So you know, even Hoffman has a bunch. So we just need to know which

project goes with which claim. Because right now, a lot of the 1502s coming in are just

saying the subcontractor name. So we don't know, you know, if it's against their regular

worker's comp or if it's, you know, one of their projects.

(00:20:48) You know, what's concerning about that is then when -- if a worker requests

a hearing, I mean it -- it needs to -- everything needs to follow form with how that

project is identified for the Hearings Division for -- I mean the work -- the employer

gets the experience against their MOD rate, so everything should follow form, all

documents.

(00:21:14) Right.

(00:21:15) I don't think this is just a 1502.

(00:21:18) Yeah. We agree.

(00:21:17) It should be all documents related to, you know, whether it's -- because it's

not -- it's usually listed as the client's name that's the purchaser of the policy.

(00:21:30) Uh-huh.

(00:21:31) And the subcontractor is usually way down at the bottom of those listings.

(00:21:33) Right.

(00:21:34) So I think there could be maybe some consistency across the board on how

all of that is identified, regardless of who the carrier or the purchaser of the policy is


when it's being presented. You know, there's a format by which it's supposed to be

presented to the division to get approval for the -- the CCIP policy or the OCIP policy

for the wrap policy.

(00:22:01) Yeah.

(00:22:03) And I think whatever is on that document should be consistent on all other

documents related to that.

(00:22:07) We agree.

(00:22:08) Whether it can be, you know -- so no. The reason I'm saying that is, is there

more of a discussion outside of this particular rulemaking to ensure that all -- all

documents are going to be consistent with the same information? You know, we get

confusion all the time between the different programs. Because we're on so many

projects that are wrap-up projects.

(00:22:30) Right.

(00:22:31) There are separate carriers involved.

(00:22:32) Yep.

(00:22:33) Ours are all the same carrier.

(00:22:34) Yep.

(00:22:35) But, you know, all of our clients use different carriers.

(00:22:37) Yeah.

(00:22:38) And the documentation I would suggest is different for each one of them as

to what the client requires.

(00:22:44) Yeah.


(00:22:46) So I think there could be more of a discussion on that.

(00:22:47) I completely agree.

(00:22:49) Okay.

(00:22:50) Yeah.

(00:22:51) Okay. Yeah, I'm fine with that. I think that makes sense.

(00:22:55) Yes?

(00:22:56) So in the SAIF Corporation, we don't have an issue with the rule. Again, we

were just -- surrounding implementation of this --

(00:23:02) Uh-huh.

(00:23:03) -- we need some lead time. And then on the 1502 itself, the assumption is

that you'd be creating a new field or something to report this, and just looking at

character limitations, I think now on the employer, the policy holder, it's like a 50

characters.

(00:23:23) Uh-huh.

(00:23:24) And when we're talking about the wrap-ups, those can be lengthy also. So

just taking into account that we might need at least another 50 characters for that and

that there's space on the 1502 to do that reporting.

(00:23:38) Well the wrap-up project name would be the employer.

(00:23:42) Yeah. See, it is, and then -- but you have to have somewhere in there,

Jenny, to have the actual employer because this again goes against their experience. So

you do have to have the employer and the actual employer identified, not just the

purchaser of the -- or the program, like Nike OCIP Wrap. You know, it's got a list of the


actual employer because the employer has every right to get information regarding that

claimant, and they wouldn't if the insurer is not identifying them with a 1502.

(00:24:15) I -- and I guess that's our assumption was is that the insured policy holder

name would still appear, and in addition to that, we would also provide the wrap-up

project name.

(00:24:28) Yeah.

(00:24:30) You're saying it would be an either or?

(00:24:34) Which would be confusing for a worker -- which it is very confusing for

workers because and Sheri; I'm just going to use Hoffman.

(00:24:39) Yeah, that's (inaudible).

(00:24:40) But we're not supposed to use names.

(00:24:41) Yeah.

(00:24:42) It's okay.

(00:24:43) They go oh, who do you work for? Oh, I work for Hoffman. Well, we know

well enough now, and that Hoffman does a lot of OCIPs/CCIPs.

(00:24:50) Yep.

(00:24:51) So then it's like, Oh, where were you working?

(00:24:53) Right, yes.

(00:24:54) (Inaudible). It's wrap-up here and there you know.

(00:24:56) Right.

(00:24:57) And it's difficult. It's difficult for the worker.

(00:24:59) Yeah.


(00:25:00) I imagine for workers attorneys even. The client comes in, and they say,

hey, I work for Hoffman. They're thinking, it's a Hoffman claim.

(00:25:09) Yeah. And they are, and most of the time, it's -- they aren't our employees.

(00:25:13) Right.

(00:25:14) Period.

(00:25:14) Right.

(00:25:15) You know, most of those are (inaudible). So --

(00:25:19) And the way we have it in the proposal or thought under (I) is basically just

a new thing for a wrap-up project name if they're covered under a wrap-up project, still

requiring the employer's legal name, the employer's policy number, but then having

that as an additional piece.

(00:25:38) And that's how we took the intent and are fine with that intact.

(00:25:42) Yeah. Uh-huh.

(00:25:43) And just almost sounded like it was, you know, either -- wanted either or,

and we would like this and this because in our system, we capture the employer's name

and also capture that it's part of a wrap-up project and when that wrap-up project is.

So if someone called, again if they said, oh, I'm calling in about this wrap-up, and I

don't -- this is an internal practice, we would look at it and go, well, your employer is

this, and you're working on a wrap-up project and the claim is subject to the wrap-up

project. So I guess it's just -- I think the clarity would be better if we refer it to it as this

is the employer that you are working for and they're a part of this wrap-up project.


(00:26:29) I think these run into the same conflict. (Inaudible) these two things in the

same bucket. But with leasing companies --

(00:26:36) With leasing companies?

(00:26:36) yeah, because you've got the two things that are going on and at least for

the folks that I talk with, workers, they don't -- the other part of that doesn't make

sense.

(00:26:49) Oh, it gets even more confusing when you have a leasing company on an

OCIP.

(00:26:52) Yeah. Yeah.

(00:26:54) Yeah, and they're working for Jones concrete and they're a leasing

company, which is also enrolled in the OCIP. So, yeah, I can imagine. Oh, so I work for

Jones. But --

(00:27:02) We need more characters (inaudible).

(00:27:05) Yeah. So see, yeah, it can get really confusing.

(00:27:09) Does division 050 deal with any of the wrap-up requirements?

(00:27:16) Nothing comes to mind offhand, but I might not.

(00:27:18) Yeah. Most of the wrap-up statute is Division of Financial Regulation.

Because they're --

(00:27:23) Oh, in DFR.

(00:27:24) Yeah.

(00:27:25) Yeah. I was just --

(00:27:25) Like 731.


(00:27:27) Oh, because they have a different policy.

(00:27:28) Something like that? Yeah.

(00:27:31) It'd just be kind of nice to have one little (inaudible) information (inaudible).

(00:27:40) Well -- and I think it starts with that original application to get an approval.

(00:27:43) Yeah.

(00:27:44) Right.

(00:27:45) Everything should flow there, and then all you would do is add the

subcontractor's name to it, and then they each have their own policy number.

(00:27:53) Then the insurer needs to communicate that when they're sending all these

forms in, so it proper -- it gets properly collected in our system. Right?

(00:28:02) Uh-huh. Yeah.

(00:28:08) Okay. Any other comments on that one? So moving to issue number 23.

This is also under rule 0011(4)(b)(F), so that same area, and the rule requires that the

insurer include the employer's policy number on every form 1502 it submits, but a self-

insured employer and a noncomplying employer claim have no policy number, and as a

result, there's no way to strictly comply with the rule on that issue. So our proposal was

to clarify that a policy number may not always be necessary since there might not

always be one to provide -- doing that by modifying the rule to indicate, but the

employer's policy number is required, unless the employer is self-insured or the claim is

a noncomplying employer claim.

(00:28:59) On the database. So hopefully, they're not (inaudible).


(00:29:11) All right. Any other comments? So issue 24 relates to claim record request,

and that is currently rule 0009, although one of the components to this issue is whether

we should be moving this rule into the Division 0001 rules, and it would be a new

Division 0001 rule. And some of the changes, the full breadth of changes is within these

draft rules that we provided under rule 0009, and a lot of them are more housekeeping

in nature, but there's also the form 3088 is available to request claim file records. The

form is not included in the rule currently, and the information that is required by rule to

process a claim file record requests could leave questions open about entitlement to the

information, and so there's a little more background. If the stakeholder requests a claim

file in writing, they can use our form, and we'll process it with that form, and that

assists the stakeholder in providing the necessary information to the division, but

without it being referenced, general people might not know it's there. And then the

current rule does not explicitly require the requester to identify themselves beyond

articulating their name and certain contact information. It doesn't explicitly require

them to sign a certification statement confirming entitlement to those requested

records, although our form does have something with that. The director is able to

follow up to ensure that the release of records is consistent with the law, but it appears

prudent to require the necessary information up front in the initial request by modifying

the rule. And then the rule also allows the director to refuse to honor certain releases,

but just not explicitly allow the director to require additional information to ensure that

the records are released in accordance with the relevant statute, which is ORS 192.355

and the rule. So some of those more substantive changes in that big draft is to update


the rule to reference the form 3088 to require the identity of the requester to require a

signed certification statement when necessary and allow the director to require

additional information to ensure records are released in accordance with statute and

rule, and like I said, there's some more details in the draft and the housekeeping

changes as well. So wanting to get people's thoughts on those changes. And again, no

fiscal impact would be expected by making these changes, as it just relates to the claim

file records and clarifying the use of the form and modifying that information in there,

but we didn't anticipate any change.

(00:31:58) And the reason it would be -- or may be move to Division 0001 is because

Division 0001 has some rules of general applicability -- chapter 436. This would be

another one like that.

(00:32:11) Yeah. Division 060 is about claims processing, and we thought it may be

better fit for Division 0001 with it being -- division 0001 now being more general. Any

thoughts? All right. Issue number 25 is providing the form 801 to the worker. So

the -- if requested, the insurer or the service company has to provide claim documents

in its possession and without charge to the worker, the worker's attorney, and the

worker's beneficiary. The beneficiary's attorney is not in that list of people as to who

could get the claim documents. And so the modification that we were looking at is to

just add beneficiary's attorney to the list of people who could request claim documents

under rule 0017, section (3), and since the beneficiary is already entitled to those

records without charge, we didn't anticipate any significant fiscal impacts. Any

concerns, questions, feedback. All right. That's the last of the substantive issues. And


like I said, for all of those, we welcome any fiscal impact feedback. So I don't forget to

say it at the end, is it Friday that we have for written feedback?

(00:33:36) I think we gave people a little longer than that, maybe until the end of the

following week.

(00:33:40) Okay. If people have additional thoughts or comments, we are taking -- we

are waiting to kind of proceed forward and having some people give written feedback

as well. So if you think of something after you leave here, we invite you to always let us

know, and then before we draft up the official draft rules to show everybody, we'd

welcome any additional information you might provide. So --

(00:34:05) And you can also provide information over the telephone too. This is not like

formal testimony. It's advice, and so, however, it's most convenient for you to provide it

is fine with us.

(00:34:18) So I'm going to go through the housekeeping items. I don't think these are

substantive in nature, but people can feel free to disagree, and if you, anything jumps

out as concerning or that you have a comment on, please let me know. So throughout

Division 60, we plan to update and review statutory authority and implementation lines.

A lot of those changes, hopefully I got them all, but the proposals I have, you can see

where those changes are in the drafts that I created. There's also changing references

to training program or a vocational training program to an authorized training plan.

There is, under rule 3, the title of the rule is purpose and applicability, and it has three

sections. We plan to kind of squish those all into one rule. Under rule 0005, the draft

rules describe the anticipated changes that we have below, just changing


some -- replacing the definition of Hearings Division with Board, modifying that

definition for consistency throughout the different divisions of rules, changing all

references from Hearings Division to Board, and adjusting some other things to board,

using the word board. There is one exception under rule 0035 that talks about what

written notice needs to be sent to the worker by the insurer, advising them of their

right to appeal an action to the Worker's Compensation Board, and we wanted to keep

the full description there in case an insurer just kind of copies and pastes what they

need to tell the worker into a letter. That way, it's spelled out. Under rule 0005, section

(11), clarifying a definition for the term insurer or deleting an extra word. Any

comments so far? I'll kind of stop every now and then. Okay. Rule 0005, section (16),

the rule is used to reference certain benefits, saying that the benefits are stayed. We

had replaced that to say stop, but stop can be confusing. So we were going to change

it to be stayed, consistent with statue. Rule 0009, updating titles, rule language and

website information to eliminate excess verbiage and statements in the rule -- moving

the rule to Division 0001. Like I said, this is the claims file rule that we just talked

about. Rule 0010[(1)(a)], add an either between sections (A) and (B) and change the

end to an or. So basically form 801 must be readily available for workers to report their

injuries. The employer must provide form 801 to the worker, either immediately upon

request or upon receiving notice or knowledge of an accident. Rule 0011 is clarifying if

the claim has been withdrawn after the claim has been reported to the director, not just

that the claim has been reported as far as the 1502 has to be filed. Rule 0017 is some

modifications referring to worker instead of claimant, eliminating the title or definitions


because the rule goes a little bit beyond just definitions. Modifying the reference to a

work -- from a working day to a business day. I know we had some discussion about

business days/working days, so that could be up for further review based on that

discussion. But (3)(d), it currently says if the worker or beneficiary's attorney is going

to -- changing it to if the worker's or beneficiary's attorney makes an ongoing request,

and then referring again, the insurer has to provide the new document to the worker's

or the beneficiary's attorney every 30 days, so adding a beneficiary in that part as well.

Under section (4), just restoring some parallelism in the verbiage of the rule. Section

(5), eliminating a reference to delivered since the rule already says the documents must

be mailed and mailed includes hand delivery. Rule 0045 is removing the redundant

freeze benefits when talking about compensation benefits. Rule 0060 - this is consistent

with what I talked about with the authorized training plan instead of just saying training

under 436-120. There's an extra comma in rule 0095. There's under section (4), the

worker reimbursement is more completely addressed in rule 0025 of Division 009 rules.

And so basically -- sorry. Under section (4) of rule 0095, it talks a little bit about worker

reimbursement, and it has pieces of our rule that's in division 0009 under rule 0025

about how that reimbursement is supposed to work. So instead of taking those pieces

and having it not be complete with all of those pieces, modifying the rule to just

reference that division 009, rule 0025, about reimbursement instead of little pieces of

that.

(00:39:27) And all of those are in division 009?


(00:39:31) What is -- so the modification would eliminate what is in there, but yes,

those pieces are division 009.

(00:39:36) Like (inaudible) is listed in 009?

(00:39:38) Yes.

(00:39:39) Okay.

(00:39:40) Yeah. Under rule 0095, section (5), this is kind of a similar thing where we -

in our division 010 rules, there's referenced to when you have to forward a report from

the following completion of the exam when you have to forward the report to the AP or

the ANP, and so just modifying this rule, so that it's consistent in terms of language

with the rule 010 -- division 10 rule. Under rule 135, taking has not, and instead of

saying it once, saying it twice, just so it's very clear. Rule 0140, we plan to -- eliminate.

Again, this is again an area where we partially address some of our rule. So it talks

about, in rule 0140, about correcting an error or omission in the updated notice of

acceptance at closure that you have to use the word corrected. That is more completely

addressed in rule 0030, and so eliminating that kind of partial comments about the

updated notice of acceptance at closure since it's already referring the reader to rule

0030 - I'm sorry, division 030, rule 0015. And then rule 0140 talks about acceptances

and denials, but (6)(b)(B) of the rule talks about payment of death benefits following a

worker's death during a period of PTD, and that language seems more appropriately

placed in rule 0075, under section (7), which talks about death during PTD, and so

basically just moving that information into a different rule. Rule 0155, correcting a typo

of “purposed.” Under (3)(b) removing the word “additional“ when talking about the


award of additional civil penalties, because not all penalties that we are wording are

going to be a civil penalty, and so it might not be an additional civil penalty about failing

to meet the requirements there. There's this extra period in rule 0500. Adding the word

to when we're talking about something being due. Right now, our rules read that it's

due the insurer or due the insure -- worker, and so just adding the word to, due to the

worker, due to the insurer. Referring to division, rather than Worker's Compensation

Division, consistent with our definition. And that's all the housekeeping changes, and I

know I went through those really fast, and so you guys might want time to process

them. So like I said, if you guys have feedback on any of those that you do not have at

the tip of your tongue right now, you can feel free to reach out to us also after this

meeting. Either call us or in writing, whatever is easiest. But since I did go through

those very quickly, anybody have anything that they caught that they want to comment

on now? Yes?

(00:42:34) (Inaudible). In 436-0140(7), acceptance (inaudible) “condition” was crossed

off. I don't know if that was inadvertent. (Inaudible) in housekeeping changes.

(00:42:50) Tell me the rule number again. Sorry.

(00:42:51) 0140. It's on page 60.

(00:42:57) Page what?

(00:42:58) Sixty-seven. Its (inaudible) condition is crossed out.

(00:43:07) Is it on page 60 of the draft?

(00:43:08) Oh, yeah.

(00:43:09) (Inaudible).


(00:43:10) All right. I think -- yeah, I see it. I do think that's inadvertent.

(00:43:27) Oh, under (7).

(00:43:30) So it just to help people to follow along, it wasn't in the issues document.

This is in the in the rules themselves that have been with some marked up changes on

them. So under one rule 0140, section (7), there's an - a line through the word

condition, and I -- and that wasn't -- I don't think it was anything in the issues

document that I had on there. So I think that, that was an inadvertent cross off. So --

(00:43:55) Thank you.

(00:43:57) Yes.

(00:43:58) Things like that can survive sometimes for a long time.

(00:44:02) A new or omitted.

(00:44:08) Anybody else have any questions, comments before we adjourn today?

Again, I want to thank everyone for coming, for giving feedback, for participating in this

process. It's very valuable to have all of your input and so thank you very much. And let

us know if you have anything. As you walk out of this room, if something comes to

mind, feel free to reach out. Very good. Thank you, everyone.

(00:44:32) Good-bye.

(00:44:37) And thank you to everyone on the phone.

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