THE MISSISSIPPI LEGISLATURE

In response to a legislative request, PEER sought to determine:

• the work responsibilities of Mississippi Workers’ Compensation commissioners;

• whether each commissioner is carrying out his or her responsibilities; and,

• whether any of the commissioners assisted the administrative law judges in writing their orders that could be appealed to the full commission.

While conducting fieldwork for these project objectives, PEER learned that the commission has deficiencies regarding commissioners’ and employees’ compliance with state leave laws and time accountability. Therefore, this review addresses these topics in addition to those originally planned for the review.

MISS. CODE ANN. § 71-3-85 (1) (1972) creates the Workers’ Compensation Commission, consisting of three members who shall devote their entire time to the duties of the office. The Governor appoints commission members for six-year terms with the advice and consent of the state Senate. Section 71-3-85 states that the commission’s chairman shall be the administrative head of the commission and shall have the final authority in all matters relating to assignment of cases for hearing and trial and the administrative work of the commission and its employees.

The Mississippi Workers’ Compensation Commission has the following primary responsibilities.

• Rulemaking—The commissioners act as a body in the promulgation of rules and regulations and in adopting and approving the forms that govern the practice and procedure before the commission.

• Adjudication—The commissioners hear and determine workers’ compensation cases or claims that come before the commission. The commission has full power and authority to determine all questions relating to the payment of claims for compensation. This power is similar to that of a court of record. The commissioners, acting as a body, sit in review of the decisions of administrative judges when a party has requested an appeal or review of that decision. Once the commission reaches an agreement on a reviewed claim, the commissioner who has been assigned primary responsibility for that case is responsible for preparing an appropriate order to be issued by the commission.

• Self-Insurance—The commission regulates the practice of self-insurance by those employers or groups of employers that self-insure their liability for workers’ compensation.

• Medical cost containment—The commission monitors medical fees, develops and maintains fee schedules, works with medical providers and payers to control medical costs, and provides dispute resolution mechanisms for disputes concerning medical fees, charges, and costs.

PEER undertook this review in response to specific complaints regarding the commissioners’ fulfillment of their work responsibilities. As evidenced by the conclusions of the report, the complaints had merit and the commission’s operations are deficient in some areas. While the causes are unique for each deficiency, PEER believes that the overriding cause relates to the unique structure of the Workers’ Compensation Commission and the chairman’s and commission’s insufficient management oversight of the agency’s operations.

Regarding the commission’s unique structure, the Workers’ Compensation Commission is one of two appointed boards in Mississippi whose members must become actively involved in the day-to-day operations of the agency. The commission’s enabling legislation envisions a full-time working board with commissioners who have a “hands on” approach in fulfilling their statutory duties and administering the commission’s programs. As described in the report’s conclusions, the commission’s “hands on” nature has caused deficiencies, such as those resulting from all three commissioners being less available to conduct the commission’s activities.

Regarding the commission’s management oversight, the commission’s chairman and commissioners have a responsibility to establish management controls to ensure the agency’s compliance with its enabling legislation. Although state law clearly assigns some responsibilities to the chair and others to the commission as a whole, the chairman’s and commission’s insufficient management oversight has caused deficiencies, such as those relating to noncompliance with state leave laws and lack of time accountability.

State law requires that commissioners “devote their entire time to the duties of the office.” Judicial decisions have held that the three-person commission shall act in a body, with at least two commissioners agreeing before an award can be made. The absences of one commissioner have caused the remaining two commissioners to have to hear a large number of compromise settlement cases on some days.

The Workers’ Compensation hearing process, whereby an administrative judge initially hears a case and makes a decision, with an appeal of the decision to a commission of three individuals, requires that there be impartiality, with no one individual being involved in both the initial hearing level as well as the appeal level.

Administrative judges at the Workers’ Compensation Commission are assigned to one of four regions of the state to hear cases. They write orders at the conclusion of an evidentiary hearing to document their decision and adjudication of a contested workers’ compensation claim.

Due to a backlog of cases, a current commissioner assisted an administrative judge in the writing of orders for at least six cases. The commissioner also participated in the appeal hearing and decision for one of these cases. A commissioner’s involvement in preparing an order of an administrative judge possibly creates an appearance of bias or impropriety.

1. The Workers’ Compensation Commission chairman should analyze how the commissioners and commission staff are accomplishing the duties of the commission—rulemaking, adjudication, approval of self-insurance programs, and medical cost containment—to determine whether all responsibilities are being accomplished as required by law. The chairman should ensure that he, the commissioners, and the commission as a whole are fulfilling the responsibilities delineated in CODE Sections 71-3-85, 71-3-93, 71-3-99, 71-3-47, and any other statutes that apply to responsibilities of the Workers’ Compensation Commission, commissioners, chairman, or staff.

   The chairman should also ensure that the commission prepares and adopts minutes recording all formal administrative actions of the commission (e.g., personnel decisions, budget adoption). The commission should also maintain formal attendance and recusal records of all full commission hearings.

2. The Workers’ Compensation Commission chairman should consult with the other members of the commission regarding the equitable distribution of work that must be carried out by the three commissioners. Should the chairman determine that the commission and its staff have excess capacity with which to accomplish tangential responsibilities such as educational and outreach activities, the chairman should determine how those efforts can best be carried out in light of the commission’s regular workload.

   If the commission determines that it has a need to educate and inform various constituencies about Mississippi workers’ compensation laws and procedures, the commission should delegate such function to an employee whose absence from the office would not impede the full commission’s work schedule. Also, when setting the annual budget, the commission should establish a budget for training and outreach activities that one or more of the commissioners will be responsible for executing. In the future, outreach activities should be limited to those that the commission as a body has deemed to be necessary and appropriate.

   Commissioners should limit their absences from MWCC offices for any reason (except illness) to days on which the commission typically has a lighter workload—i.e., Thursdays and Fridays.

3. Commissioners should avoid providing assistance to administrative judges in the preparation of final orders. If an administrative judge needs assistance in preparing a final order, another administrative judge, the commission’s chief counsel, or contract legal staff should provide such assistance.

4. The current MWCC commissioners should immediately review available commission and personal records to determine the number of days since their appointments as commissioners that they have been away from MWCC offices for personal reasons or illness without having taken personal or major medical leave. The commissioners should complete the paperwork to take the appropriate leave and submit it to the MWCC payroll office so that the proper deductions may be made from their leave balances.

5. The State Auditor should conduct an audit of the MWCC’s leave records to ensure that the commissioners (as well as all other employees) have properly accounted for their time away from MWCC offices. Should the State Auditor determine that the commissioners have not complied with the state’s leave laws by taking leave for days in the past on which they were absent, he should recommend that the commissioners take appropriate corrective action. Within six months, the State Auditor should conduct a follow-up audit and consider taking appropriate legal actions provided in MISS. CODE ANN. § 7-7-211 (1972) if the commissioners have not claimed leave for their time away from MWCC offices for personal and non-business reasons.

6. The MWCC chairman should direct Commissioner Quarles’s secretary and the MWCC Executive Director to review all available agency and personal (such as calendars and log books) records to determine any other days on which the secretary was absent from work but did not take leave. Should other dates be identified, the chairman should direct that the secretary complete the appropriate paperwork for submission to Commissioner Quarles for approval. Also, the MWCC administrative staff and payroll office should amend their absentee reports and the state payroll system to document the deduction of leave from the secretary’s accrued leave balance for any leave used but not documented.

7. The Workers’ Compensation Commission should direct its Executive Director to develop a comprehensive standard operating procedures manual that documents administrative processes of the commission. Once developed and adopted by the full commission, the commissioners and executive director should conduct periodic training sessions regarding such processes. The chairman should regularly remind division directors of their responsibilities to ensure MWCC employees’ strict compliance with administrative policies and procedures.

8. The MWCC chairman should direct all employees, including those specifically assigned to the chairman’s office, to complete weekly timesheets for submission to their direct supervisors. MWCC supervisors should routinely reconcile the timesheets with signed leave forms when compiling the monthly absentee reports.

9. The MWCC chairman should direct the three employees who attended an out-of-town funeral on June 16, 2003, to complete the appropriate paperwork to document their absence from the office. The MWCC administrative staff and payroll office should amend their June absentee reports and the state payroll system to document the deduction of one day of personal leave from each of the three employees’ accrued leave balances.

10. As part of the commission’s time accountability system, the MWCC chairman should immediately develop a time accountability system for administrative judges and court reporters. At the very least, the chairman could re-institute the “Administrative Law Judge Activity Report” utilized by a previous chair, which documented the judge’s location by day of the week as well as the cases heard during those days. As other MWCC employees are required to do, administrative judges and court reporters should be required to sign their time reports verifying their work locations and activities. Also, the MWCC chairman should encourage administrative judges and court reporters to conduct as much of their work as possible from MWCC offices, where they have access to administrative support, the commission’s chief legal counsel, and an in-house law library. Chairman Smith should encourage administrative judges and court reporters to work from home or other locations only when absolutely necessary and pre-cleared by him.