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07/07/2021  
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·6· · ·PUBLIC HEARING ON PROPOSED ADMINISTRATIVE RULES  
·7· · · · · · · · · · STATE OF MICHIGAN  
·8· · · DEPARTMENT OF LABOR AND ECONOMIC OPPORTUNITY  
·9· · · · ·WORKERS' DISABILITY COMPENSATION AGENCY  
10· · · · · · · · · · · · held at  
11· ·Room L-150, 3026 W. Grand Boulevard, Cadillac Place  
12· · · · · · · · · · Detroit, Michigan  
13· · · · · · · · · · · · · ·on  
14· · · · · · · · ·Wednesday, July 7, 2021  
15· · · · · · · · · · · · · ·at  
16· · · · · · · · · · · ·11:00 a.m.  
17· · · · · · · · · · · conducted by  
18· · · · · · · · JACK A. NOLISH, DIRECTOR  
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·1· · · · · · · · · · · ·TABLE OF CONTENTS  
·2· · · · · · · · · · · · · · · · · · · · ·Page  
·3· ·Introduction· · · · · · · · · · · · · · · · · 3  
·4· ·Workers' Compensation Health Care· · · · · · ·5  
·5· · · Services (HCS)  
·6· ·Workers' Disability Compensation Appeals· · · 7  
·7· · · Commission General Rule Set (WDCAC)  
·8· ·Workers' Disability Compensation Board· · · · 9  
·9· · · Of Magistrates General Rule Set (BOM)  
10· ·Workers' Disability Compensation General· · ·15  
11· · · Rule Set (WCA)  
12· ·Closing of Hearing· · · · · · · · · · · · · ·23  
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·1· · · · · · ·DIRECTOR NOLISH:· Let the record reflect this  
·2· ·is a public hearing on proposed administrative rules  
·3· ·entitled Department of Labor and Economic Opportunity,  
·4· ·Workers' Disability Compensation Agency, Administrative  
·5· ·Rules for Workers' Compensation Healthcare Services.  
·6· · · · · · ·I will note that we are entertaining four  
·7· ·separate rules hearings today and the first will be the  
·8· ·Healthcare Services Rules.· This is as they were dually  
·9· ·noticed in publications of general distribution.  
10· · · · · · ·This hearing is being conducted pursuant to  
11· ·provisions of Section 205 and 315 of the Workers'  
12· ·Disability Compensation Act of 1969, also known as 1969  
13· ·PA 317 or MCL 418.205 and 418.315; Section 33 of the  
14· ·Administrative Procedures Act of 1969 known as 1969  
15· ·Public Act 306, MCL 24.233, and Executive Reorganization  
16· ·Order Numbers 1982-2, 1986-3, 1990-1, 1996-2, 2003-1,  
17· ·2011-4, 2019-13, MCL 18.24, 418.1, 418.2, 445.2001;  
18· ·445.2011, 445.2030, and 125.1998.  
19· · · · · · ·This hearing is being called to order at  
20· ·11:05 a.m. on July 7th, 2021, at Room L-150, Cadillac  
21· ·Place, 3026 W. Grand Boulevard in Detroit, Michigan.  
22· ·This hearing was published in three newspapers of  
23· ·general circulation as well as the Michigan Register,  
24· ·Issue Number 11-2021 published on July 1st, 2021.  
25· · · · · · ·I am Jack Nolish.· I am the Director of the  
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·1· ·Workers Compensation Agency and I will be facilitating  
·2· ·the hearing today.  
·3· · · · · · ·Please note that we are here today to receive  
·4· ·your comments on the proposed rules.· If you wish to  
·5· ·speak please make sure you have signed in and indicating  
·6· ·your willingness to speak.· We will call on speakers in  
·7· ·the order in which names are listed on the sign-in  
·8· ·sheet.· When you come forward to speak, please identify  
·9· ·yourself with your name, the organization you represent  
10· ·and both your mailing and email addresses so this  
11· ·information can be transcribed into the hearing report.  
12· · · · · · ·There not being a large crowd at this hearing  
13· ·I will not at this point impose any kind of time  
14· ·restrictions on those that might wish to present on the  
15· ·rule sets.  
16· · · · · · ·If you have any additional comments to submit  
17· ·in writing you may leave them at the registration desk  
18· ·here or submit them to our Department no later than the  
19· ·close of business today.  
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·1· · · · · · ·WORKERS' COMPENSATION HEALTHCARE SERVICES  
·2· · · · · · ·DIRECTOR NOLISH:· All right.· Is anyone here  
·3· ·interested in speaking for/against the Healthcare  
·4· ·Services Rules.  
·5· · · · · · ·(No response)  
·6· · · · · · ·Okay.· We will wait a few minutes and then we  
·7· ·will close the record on the first part of the hearing  
·8· ·so feel free to visit amongst yourself.  
·9· · · · · · ·(A short recess was taken)  
10· · · · · · ·DIRECTOR NOLISH:· I need to also mention that  
11· ·in the Healthcare Services Rule, Rule 418.1 -- I'm  
12· ·sorry, Rule 107, which is Rule 418.10107, Source  
13· ·Documents, there is an update in Paragraph H which is on  
14· ·page 3 of the ruleset.· There is a cross-reference to  
15· ·official UB-04 Data Specifications Manual.· When these  
16· ·rules were drafted we were relying on the 2021 edition.  
17· ·That has now been outdated and by the time these rules  
18· ·are effective we will be relying on the 2022 version,  
19· ·and, similarly, July 1st publication date of 2020 will  
20· ·be updated to July 1st, 2021.· And those changes will be  
21· ·incorporated as part of the report to the Joint  
22· ·Committee on Administrative Rules.  
23· · · · · · ·We're on hold for the time being, then.  
24· · · · · · · · · (A short recess was taken)  
25· · · · · · ·DIRECTOR NOLISH:· It is now 11:20.· I have  
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·1· ·checked the sign-in list.· No cards have been submitted.  
·2· ·No one has signed in to testify regarding the Healthcare  
·3· ·Rules.· Therefore, that portion of our hearing today is  
·4· ·now closed.· We will reconvene at 11:30 to do the Rules  
·5· ·for the Board of Magistrate.  
·6· · · · · · ·I will note, however, that there was an error  
·7· ·in one of the published notices that appeared in the Ann  
·8· ·Arbor newspaper and it listed all the rules to be heard  
·9· ·at 12:30.· So if someone might have some interest in the  
10· ·Healthcare Rules that shows up here at 12:30 I will  
11· ·entertain discussion at that time.· I don't know if  
12· ·anybody is interested in monitoring all of that, but  
13· ·that's how we're going to proceed.· That will also apply  
14· ·to the other rulesets that will be called before the  
15· ·General Agency set at that time.  
16· · · · · · ·So having said that, we are now in recess  
17· ·until 11:30.  
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·1· · · WORKERS' DISABILITY COMPENSATION APPEALS COMMISSION  
·2· · · · · · ·DIRECTOR NOLISH:· Good morning.· I'm Jack  
·3· ·Nolish, Director of the Workers' Compensation Agency.  
·4· ·The record is now open in the public hearing on the  
·5· ·proposed Administrative Rules entitled Department of  
·6· ·Labor and Economic Opportunity, Workers' Disability  
·7· ·Compensation Appeals Commission General Ruleset (WDCAC).  
·8· ·This hearing is being conducted pursuant to provisions  
·9· ·of Section 274 of 1969 PA 317, MCL 418.274, and  
10· ·Executive Reorganization Order Numbers 1996-2, 1993 --  
11· ·excuse me, 1999-3, 2002-1, 2003-1 and 2019-13, MCL  
12· ·445.2001, 418.3, 445.2004, 445.2011 and 125.1998.  
13· · · · · · ·This hearing is being called to order at  
14· ·11:30 a.m. on July 7th in Room L-150, Cadillac Place,  
15· ·3026 W. Grand Boulevard, Detroit.· This hearing was  
16· ·published in three newspapers of general circulation, as  
17· ·well as the Michigan Register, Issue Number 11-2021,  
18· ·published on July 1st, 2021.  
19· · · · · · ·At this point I'm calling for any public  
20· ·comment relative to the ruleset for the Appeals  
21· ·Commission.· I do not have any cards signed in nor has  
22· ·anybody signed in expressing a desire to speak, but if  
23· ·there is someone that wishes to do so please come  
24· ·forward.  
25· · · · · · ·And, again, as before, we will hold the record  
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·1· ·open.· And at this point you're free to wander around  
·2· ·for a few minutes.  
·3· · · · · · ·(A short recess was taken)  
·4· · · · · · ·DIRECTOR NOLISH:· Recalling the matter of the  
·5· ·Workers Compensation Appeals Commission Rules.· Anybody  
·6· ·interested in speaking or making any presentations?  
·7· · · · · · ·Having checked the sign-in list and there's no  
·8· ·name appearing there, we will consider the record closed  
·9· ·on this matter.  
10· · · · · · ·We will reconvene at 12:00 o'clock to do the  
11· ·magistrate's rules, and we are in recess.  
12· · · · · · ·(A short recess was taken)  
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·1· · · · · WORKERS' COMPENSATION BOARD OF MAGISTRATES  
·2· · · · · · ·DIRECTOR NOLISH:· This is a public hearing on  
·3· ·proposed Administrative Rules entitled Department of  
·4· ·Labor and Economic Opportunity, Workers' Disability  
·5· ·Compensation, Workers' Board of Magistrates General  
·6· ·Ruleset, also referred to as BOM.  
·7· · · · · · ·This hearing is being conducted pursuant to  
·8· ·the provisions of Section 205 and 213 of the Workers'  
·9· ·Disability Compensation Act of 1969, 1969 Public Act  
10· ·317, and MCL 418.205 and 418.213, as well as Section 33  
11· ·of the Administrative Procedures Act of 1969 being 1969  
12· ·Public Act 306, MCL 24.233, and Executive Reorganization  
13· ·Order Numbers 1996-2, 1999-3, 2002-1, 2003-1 and 2019-3  
14· ·also known as MCL 445.2001, 418.3445 -- excuse me,  
15· ·418.3, 445.2004, 445.2011 and 125.1998.  
16· · · · · · ·This hearing is being called to order at  
17· ·12:00 p.m. on July 7th held at Room L-150, Cadillac  
18· ·Place, 3026 W. Grand Boulevard, Detroit.· This hearing  
19· ·was published in three newspapers of general circulation  
20· ·as well as the Michigan Register, Issue 11-2021  
21· ·published on July 1st, 2021.  
22· · · · · · ·As I indicated at the prior hearing we will  
23· ·also entertain discussions or comments on this ruleset  
24· ·starting with the 12:30 hearing as well.  
25· · · · · · ·I have at this point two cards expressing an  
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·1· ·interest in speaking and in the order that they were  
·2· ·submitted to me, first is Jayson Chizick indicated as  
·3· ·speaking in support.  
·4· · · · · · ·MR. CHIZICK:· Thank you very much, Mr. Nolish.  
·5· ·I appreciate the opportunity to speak.  
·6· · · · · · ·I am the Acting Section Chair for the Workers'  
·7· ·Compensation Law Section of the State Bar of Michigan.  
·8· ·Our former chairperson and three council members were  
·9· ·invited to participate in assisting with the drafting of  
10· ·these rules and were reporting back over a period of  
11· ·many months in support of the rule foundation process as  
12· ·well as the proposals that we ended up with here today.  
13· · · · · · ·Council was involved in commentary, fortunate  
14· ·to have the director consult, and update the progress  
15· ·during the drafting process.· The council has in a  
16· ·bipartisan fashion endorsed the rules.· We believe that  
17· ·they are critical to the streamlining of the exchange of  
18· ·information, evidence and practice management.· The  
19· ·result of these rules I believe and I believe speaking  
20· ·on behalf of the Workers' Compensation Law Section  
21· ·Council will increase efficiency, reduce costs for  
22· ·business and injured workers and their counsel.  
23· · · · · · ·In the circumstance where the State Bar is  
24· ·consulted and involved in putting together the rules we  
25· ·are fortunate to be able to say that we have been heard  
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·1· ·and, therefore, we do endorse the rules.  
·2· · · · · · ·I would also note on a personal note that I  
·3· ·I've reviewed the changes that were proposed by the MAJ  
·4· ·and the self-insured representatives, and, again, on a  
·5· ·personal note believe that these compromises represent  
·6· ·the reasonable effort to deal with certain matters in  
·7· ·the proposed rules.  
·8· · · · · · ·And thank you for the consideration.  
·9· · · · · · ·DIRECTOR NOLISH:· Mr. Chizick, you indicated  
10· ·that you wish to also speak to the general rules?· Do  
11· ·you want this to be considered a comment on those as  
12· ·well or do you want to address them separately?  
13· · · · · · ·MR. CHIZICK:· Director Nolish, I would be  
14· ·happy if my comments were echoed in all respects for the  
15· ·second set of rules.  
16· · · · · · ·DIRECTOR NOLISH:· So noted.  
17· · · · · · ·Miss Drobnich.  
18· · · · · · ·MS. DROBNICH:· Good morning.· Dawn Drobnich on  
19· ·behalf of the Michigan Self-Insured Association.  
20· · · · · · ·MR. MacDONALD:· Good morning.· Robert  
21· ·MacDonald, past president for the Michigan Association  
22· ·for Justice.  
23· · · · · · ·MR. WARSH:· Good morning.· Richard Warsh on  
24· ·behalf of Michigan Association of Justice.  
25· · · · · · ·MS. DROBNICH:· Director Nolish, we'd like to  
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·1· ·-- we have submitted a 5-page letter that is in support  
·2· ·of changes to the proposed Board of Administrative  
·3· ·Rules.· We are in support of the agency rules with these  
·4· ·proposed changes outlined in the letter that has been  
·5· ·provided to the Agency.  
·6· · · · · · ·DIRECTOR NOLISH:· And would you like those  
·7· ·made as part of the record?  
·8· · · · · · ·MS. DROBNICH:· Yes, please.  
·9· · · · · · ·DIRECTOR NOLISH:· Mr. MacDonald?  
10· · · · · · ·MR. MacDONALD:· Thank you, your Honor.  
11· · · · · · ·DIRECTOR NOLISH:· Do you concur?  
12· · · · · · ·MR. MacDONALD:· We concur, yes.  
13· · · · · · ·DIRECTOR NOLISH:· Mr. Warsh?  
14· · · · · · ·MR. WARSH:· Yes.· I would want to say that  
15· ·these changes are supported by both sides of the Bar,  
16· ·were done thoughtfully, and we are happy to announce  
17· ·that we have all signed off on them.  
18· · · · · · ·DIRECTOR NOLISH:· Thank you.· I appreciate all  
19· ·the effort that's gone into that.· And do you wish these  
20· ·remarks to be considered for both the Board of  
21· ·Magistrates and the Agency Rules?  
22· · · · · · ·MS. DROBNICH:· Yes, I do.· This is Dawn  
23· ·Drobnich on behalf of Michigan Self-Insured.· Also note  
24· ·the letters in support of those rules with the changes  
25· ·as suggested in a 4-page letter, it's a different  
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·1· ·document.  
·2· · · · · · ·DIRECTOR NOLISH:· So there are two documents?  
·3· · · · · · ·MS. DROBNICH:· Yes, there is.· The first one  
·4· ·is the Board of Magistrates document.· It's 5 pages  
·5· ·signed by four parties.· Dan Cannon also signed it.  
·6· ·He's a defense attorney, and also an associate member of  
·7· ·the Michigan Self-Insured Association, could not be here  
·8· ·today.· He signed off also on this as well.· So the  
·9· ·Board of Magistrate letter is 5 pages and the General  
10· ·Agency Rules is a 4-page document.  
11· · · · · · ·DIRECTOR NOLISH:· So noted.· We will make  
12· ·those part of the record.  
13· · · · · · ·Mr. MacDonald?· Do you want to add anything?  
14· · · · · · ·MR. MacDONALD:· I concur with what Dawn said.  
15· ·Thank you.  
16· · · · · · ·DIRECTOR NOLISH:· Mr. Warsh?  
17· · · · · · ·MR. WARSH:· I concur as well.  
18· · · · · · ·DIRECTOR NOLISH:· Any additional comments that  
19· ·I might not have cards for?  
20· · · · · · ·Thank you for your comments.· They are so  
21· ·noted.· We will now leave the record open for a period  
22· ·of time and we are in temporary recess.  
23· · · · · · ·(A short recess was taken)  
24· · · · · · ·DIRECTOR NOLISH:· Recall the matter of the  
25· ·Workers' Compensation Appeals Commission Board of  
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·1· ·Magistrate Rules.· There being no additional public  
·2· ·comment requested the record is closed.  
·3· · · · · · ·Okay.· We will be recessed at 12:30 at which  
·4· ·time we'll take up the Agency Rules.  
·5· · · · · · ·Thank you.  
·6· · · · · · ·(A short recess was taken)  
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·1· · ·WORKERS' DISABILITY COMPENSATION AGENCY GENERAL RULES  
·2· · · · · · ·DIRECTOR NOLISH:· Good morning.· This is the  
·3· ·public hearing on proposed Administrative Rules entitled  
·4· ·Department of Labor and Economic Opportunity, Workers'  
·5· ·Disability Compensation General Ruleset also referred to  
·6· ·as WCA.  
·7· · · · · · ·I am Jack Nolish, the Director of the Workers'  
·8· ·Compensation Agency and I am the one conducting this  
·9· ·hearing.· This hearing is being conducted pursuant to  
10· ·the provisions of Section 205 of the Workers' Disability  
11· ·Compensation Act of 1969, also known as the 1969 Public  
12· ·Act 317 and MCL 418.205 and Executive Reorganization  
13· ·Order Number 1996-2, 1999-3, 2002-1, 2003-1 and 2019-3,  
14· ·MCL 445.2001, 418.3, MCL 445.2001, 4.813, 445.2004,  
15· ·445.2011 and 125.998.  
16· · · · · · ·This hearing is being called to order at  
17· ·12:30 p.m. on July 7th, 2021 at Room L-150, Cadillac  
18· ·Place, 3026 W. Grand Boulevard, Detroit, Michigan.· This  
19· ·hearing was published in three newspapers in general  
20· ·circulation as well as the Michigan Register, Issue  
21· ·Number 11-2021 published on July 1st, 2021.  
22· · · · · · ·We will be taking comments on the General  
23· ·Ruleset and also due to an error in the publication in  
24· ·the Ann Arbor paper we will also take comments on all  
25· ·four of the rulesets, that being the Healthcare Services  
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·1· ·Rules, the Appeals Commission Rules, Board of Magistrate  
·2· ·Rules and these General Agency Rules.  
·3· · · · · · ·I have received no indication that anyone  
·4· ·wishes to speak to these rules.· We did at the prior  
·5· ·hearing receive for the record some written comments  
·6· ·from the Michigan Association of Justice in concurrence  
·7· ·with the Self-Insurance Association as well as support  
·8· ·of the section council of the Workers' Compensation  
·9· ·Section of the Michigan State Bar supporting the rules  
10· ·in a document outlining some proposed changes that were  
11· ·also supported by those organizations.· We will, of  
12· ·course, take those into consideration and incorporate  
13· ·them where possible.  
14· · · · · · ·Is there anyone that wishes to speak regarding  
15· ·any of the ruleset?  
16· · · · · · ·Hearing none, we will hold the record open  
17· ·until 12:45.  
18· · · · · · ·(A short recess was taken)  
19· · · · · · ·DIRECTOR NOLISH:· We're going to reopen the  
20· ·record on the General Rules and any other comments.  
21· ·I've been advised that Alicia Birach, or Birach -- how  
22· ·do I pronounce this?  
23· · · · · · ·MS. BIRACH:· Birach.  
24· · · · · · ·DIRECTOR NOLISH:· Okay.· Would like to testify  
25· ·in support.  
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·1· · · · · · ·MS. BIRACH:· Hello, is this -- am I supposed  
·2· ·to come up here?  
·3· · · · · · ·MR. NOLISH:· That's fine.· You have to come a  
·4· ·little closer to the microphone.  
·5· · · · · · ·MS. BIRACH:· See how I do with this.  
·6· · · · · · ·DIRECTOR NOLISH:· That's perfect.  
·7· · · · · · ·MS. BIRACH:· Okay.· So overall we're  
·8· ·testifying in support.· There were just a few issues of  
·9· ·clarification or concern, rather.  
10· · · · · · ·Under the Workers' Compensation Board of  
11· ·Magistrate proposed rules, Rule 418.86(2)(b):· "A  
12· ·magistrate is disqualified when the magistrate cannot  
13· ·impartially hear a case.· Circumstances that warrant  
14· ·disqualification include but are not limited to  
15· ·circumstances where the magistrate is personally biased  
16· ·or prejudiced for or against a party or attorney."  
17· · · · · · ·There is some concern that this is overly  
18· ·broad and subjective and it should be narrowed and  
19· ·provide some objective criteria to prevent from form in  
20· ·judge shopping.  
21· · · · · · ·Moving on to the Workers' Compensation Board  
22· ·of Magistrate Rule 418.91(1)(d)(ii) and (iii),  
23· ·Vocational Consultant Reports:· Any information in the  
24· ·report regarding remunerative employment must include  
25· ·all of the following:· (ii) a job description outlining  
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·1· ·all the functional requirements of the job; and, (iii),  
·2· ·any other pertinent information necessary to apply for  
·3· ·the employment.  
·4· · · · · · ·We feel this is an undue burden on the  
·5· ·employer and impossible in most situations to obtain  
·6· ·this information.· It's not customary practice for job  
·7· ·postings to include all functional requirements of the  
·8· ·job.· Requiring the employer to obtain this information  
·9· ·unduly shifts the burden of looking for work from the  
10· ·claimant to the employer, and the same with (iii), it is  
11· ·overly broad and again shifts the burden from the  
12· ·claimant to the employer.  
13· · · · · · ·Also, our other question is vocational  
14· ·consultants used in this rule, so 91(1)(d)(ii), the same  
15· ·individual who performs a forensic vocational evaluation  
16· ·as defined under the general rules.· If so, we were  
17· ·hoping to have some consistency in linking these two and  
18· ·kind of clarifying that because I think from the  
19· ·terminology when it comes to vocational consultant and  
20· ·vocational forensic evaluation and who performs what  
21· ·could use a little bit of clarification.  
22· · · · · · ·Moving on to the General Rules, under the  
23· ·Definition Section Rule 1(j), Forensic Vocational  
24· ·Evaluation, just a point of clarification, something to  
25· ·consider.· Is this the equivalent of Stokes for purposes  
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