Worker's Compensation Advisory Council
Council on Worker's Compensation
GEF-I, 201 E. Washington Ave.
Madison, Wisconsin
January 8, 2013

Members present: Mr. Beiriger, Ms. Bloomingdale, Mr. Brand, Mr. Brandl, Mr. Buchen, Mr. Collingwood, Mr. Ginsburg, Mr. Kent, Mr. Metcalf, Ms. Nugent, Ms. Pehler, Mr. Schwanda and Ms. Thomas

Staff present: Mr. O'Malley & Mr. Krueger

Excused: Mr. Redman

  1. Call to Order/Introductions:Mr. Metcalf convened the Worker's Compensation Advisory Council (WCAC) meeting at approximately 10:00 a.m. in accordance with Wisconsin's open meetings law.   WCAC members, staff and members of the audience introduced themselves.   Mr. Metcalf announced that Mr. Hamdy Ezalarab has been appointed Bureau of Legal Services Section Chief for Madison operations.
  2. Approval of Minutes:   Ms. Bloomingdale moved to approve the minutes of the September 11, 2012 meeting without correction; seconded by Mr. Brand.   The minutes were unanimously approved.
  3. Public Hearing Comments:  The public hearing was conducted on December 13, 2012, both afternoon & evening sessions, via video conference originating at UW Pyle Center in Madison with connections to remote locations throughout the state.   Mr. O'Malley reported that two people appeared individually and three others appeared on behalf of an organization.  Mr. Kyle Gasser spoke in support of amateur athletic officials being considered as independent contractors for worker's compensation purposes. Mr. Chris Lanagan spoke in support of two proposals.   His first proposal was that medical costs for treatment provided to injured employees needs to be further controlled.   Mr. Lanagan's second proposal was that worker's compensation benefit rates should be increased so that injured employees do not experience financial distress by the time they are able to return to work.   Ms. Traci Skolaski, Mr. Jonathan VanEyck and Ms. Teri Whitman, on behalf of the Wisconsin Employers for Equitable Worker's Compensation offered six proposals:
    1. The statute of limitations should be shortened to no more than three (3) years.
    2. Compromise agreements should be approved by the Department when signed by consenting adult applicants.
    3. Compensation payments for permanent total disability (PTD) will end when the employee reaches the age to be eligible for Old-Age Social Security Benefits.
    4. Eliminate death benefits for dependents of employees receiving payment of compensation for PTD when the employee's death occurs other than as a proximate cause of the injury.
    5. Authorize 15% reduced compensation when the employee violates Federal or state law at the time of injury.
    6. Update DWD Ch. 81 of the Wisconsin Administrative Code and implement changes to reduce the overall medical cost on worker's compensation claims in Wisconsin
  4. Correspondence:   Mr. O'Malley reviewed the correspondence received by the WCAC since the last meeting.  A letter dated December 17, 2012 was received from Wisconsin Employers for Equitable Worker's Compensation describing their proposed legislative changes.  A letter dated December 27, 2012 was received from Atty. John Edmondson describing six proposals for the WCAC's consideration.  Atty. Edmondson's proposals included:
    1. The due process right of parties to audio record hearings.
    2. Eliminate the interest credit under 102.32(6) of the statutes.
    3. The need for respondents to disclose their defenses earlier.
    4. Require employers to post notice in their premise of employee's basic rights under the Worker's Compensation Act, and possibly penalizing employers or insurance carriers when they purposely misrepresent the law to injured workers.
    5. Amend Section 102.57 of the statutes to increase the maximum amount for a safety violation from $15,000 to a more reasonable amount and to increase the benefit increase from 15% to 20%.
    6. Allow attorney fees for attorneys representing injured employees to 20% of the whole value of the case, eliminate the 500 week limitation on attorney fees on compensation for permanent total disability and consider capping attorney fees for defense counsel to no more than a certain percentage of the value of the claim or setting a minimum hourly rate of $350 or $400 per hour.
    Mr. O'Malley explained that DWD 80.13 of the Wisconsin Administrative Code which will allow parties to audio record hearings is in the process of being enacted.  There have been some unforeseen delays in promulgating the rule.  The Statement of Scope will be filed within the next week.

    A letter dated December 26, 2012 was received from Mr. Tim Richter, Referee-in-Chief for the Wisconsin Amateur Hockey Association, requesting amateur sports officials to be classified as independent contractors.

    An email was received from Mr. Keith Noll, Governor of the Wisconsin Amateur Athletic Union District, requesting amateur sports officials to be classified as independent contractors.

    An email was received from Ms. Julia Hertel, Executive Director of the Wisconsin Association of Convention & Visitors Bureaus, requesting amateur sports officials to be classified as independent contractors.

    A letter dated December 18, 2012 was received from Ms. Megan Meyer, Recreation Supervisor of the City of Middleton Public lands, Recreation, and Forestry Department, requesting amateur sports officials to be classified as independent contractors and not as employees of the park and recreation agencies and school districts that contract for their officiating services.

    A letter dated December 28, 2012 was received from Ms. Jean Serum, District Administrator, Northwood School District, requesting amateur sports officials to be recognized as independent contractors and not as employees of the school districts that contract for their officiating services.

    A letter dated December 21, 2012 was received from Mr. Dave Brandvold, Superintendent, School District of Edgar, requesting amateur sports officials to be recognized as independent contractors and not as employees of the school districts that contract for their officiating services.

    A letter dated December 19, 2012 was received from Mr. Scott Johnson, District Administrator, School District of Siren, requesting amateur sports officials to be recognized as independent contractors and not as employees of the school districts that contract for their officiating services.

    A letter dated December 18, 2012 was received from Mr. Roger Hulne, Superintendent, Prescott School District, requesting amateur sports officials to be recognized as independent contractors and not as employees of the school districts that contract for their officiating services.

    A letter dated December 18, 2012 was received from Mr. Greg Doverspike, District Administrator of the School District of Durand, requesting amateur sports officials to be recognized as independent contractors and not as employees of the school districts that contract for their officiating services.

    A letter dated December 18, 2012 was received from Mr. Glenn Martin, District Administrator, School District of St Croix, requesting amateur sports officials to be recognized as independent contractors and not as employees of the school districts that contract for their officiating services.

    A letter was received from Dr. Andrew J. Seter, CEO/President Seter Medical S.C., describing four proposals for the WCAC's consideration.
    1. Establishment of training service for health care providers to access for questions about worker's compensation.
    2. The treating physician should not be allowed to assess permanent partial disability in a case to avoid bias. An independent physician should be utilized.
    3. The WC treatment guidelines should be reviewed, updated and implemented to address issues regarding multiple interventions, early decisions for surgery, extended physical therapy and chiropractic or new and unproven procedures.
    4. Employees may voluntarily to go to a provider of the employer's choosing for treatment.  The employer will agree to provide coverage for the medical services provided up to a certain dollar amount, i.e. $10,000. Treatment will be provided until a formal assessment of work readiness can be completed.  The use of an Independent Medical Examination is waived.  If the case is determined to not be work-related at that point, subsequent treatment will be directed through private health insurance.
  5. Database Audit Committee:  Mr. Krueger reported that the audit is in progress and that the auditor will be setting up site visits with the databases within the next month or so. The auditor will prepare an audit report and the report is expected to be completed by May or June of 2013.
  6. Permanent Total Disability Study Committee: Mr. Aiello is serving as chairperson of this committee and he is currently on military orders and out of the office until approximately April 1, 2013. Mr. O'Malley reported the Department is reviewing each case in which a hearing application was filed claiming compensation for permanent and total disability. The Department is conducting this study for hearing applications received from October 1, 2012 through March 31, 2013 (for a six month period). To date, the Department has received about 150 hearing applications claiming compensation for permanent total disability. One of these cases was resolved by a settlement. The status of these remaining cases is not known at this time.  The Department will track the disposition of these cases until they are all resolved.
  7. Work Injury Supplemental Benefit Fund:   Mr. Krueger provided financial information on the WISBF and reviewed the revenue expenditures and cash balance of the Fund through January 7, 2013.  Mr. Krueger indicated fiscal year 2013 revenue have been $2,066,932, expenditures have been $745,304.  Mr. Krueger indicated the cash balance is $3,068,241 and accounts receivable are $805,356.  FY2013 revenue has increased over the FY2012 revenue.  With reimbursements for supplemental benefits anticipated to be in excess of $4 million in 2013 we anticipate the balance of the WISBF will continue to decline.  Mr. Metcalf commented that the Wisconsin Insurance Alliance has provided for an actuary to study the WISBF to make projections for revenues needed to keep the fund in a solvent state.  Effective April 17, 2012, supplemental benefit reimbursements paid before 2011 had to be requested no later than December 31, 2012.  Mr. Krueger indicated the WISBF did not receive any large reimbursement requests for supplemental benefits paid to PTD claimants prior to 2010.  Mr. Krueger indicated that the Department is closely monitoring the Fund.  Mr. Krueger reiterated that based upon the statutory changes effective in April, 2012, DWD has the authority to prioritize payments from the WISBF once the Fund reaches 85% encumbrance by known claims.
  8. Public Proposals:  Mr. O'Malley reviewed the Legislative Proposals from the Public and Legislators received to date.  A summary of each proposal is an attachment to these minutes.
  9. Department Proposals:  Mr. O'Malley reviewed the Department proposals to date.
    1. Amend s.102.07 (12m), Wis.Stats. & s. 102.077 Wis. Stats., to extend the law to technical colleges, universities and colleges -- allowing them to accept liability for certain work experience students and extend the exclusive remedy protection to the worksite employers.
    2. Clarify the definition of  a municipality under s. 102.01 (d), Wis. Stats.
    3. Clarify the intent of s.102.13 (2) (c), Wis. Stats to not require a final treating practitioner's report when there is a complete denial of the employee's claim for compensation and the employee has not contested the denial.
    4. Amend DWD 80.72 Health service fee dispute resolution process and DWD 81 Worker's Compensation Treatment Guidelines related to the implementation of ICD-10 codes.
  10. Other Business:  Mr. Metcalf commented that the Self-Insured Advisory Council may have some legislative and administrative rule proposals and these will be provided to the WCAC as Department proposals.  Mr. Metcalf also commented that the Health Care Provider Advisory Committee has been considering changes to ch. DWD 81 of the Wisconsin Administrative Code related to the prescription use of opioids.  Any proposals from the Health Care Provider Advisory Committee will also be included as Department proposals. Mr. O'Malley indicated there may be some Department proposals after the audit of the certified databases has been completed and after the review of the final report of the auditor.
  11. Adjournment:  Motion by Ms. Bloomingdale, second by Mr. Buchen to adjourn to closed caucus. The motion carried unanimously. Motion by Ms. Bloomingdale, second by Mr. Buchen to adjourn the open meeting. The motion carried unanimously and the meeting was adjourned at approximately 11:45 a.m.

Next meeting: February 12, 2013