Worker's Compensation Advisory Council
Council on Worker's Compensation
GEF-I, 201 E. Washington Ave.
Madison, Wisconsin
February 12, 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, Mr. Ezalarab

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.
  2. Wisconsin Employers for Equitable Workers Compensation: Jonathan Van Eyck from Briggs & Stratton, Traci Skolaski from Milwaukee Transport Services and Glen Boyle from Health Systems International, Inc. gave a presentation for legislative proposals on behalf of Wisconsin Employers for Equitable Workers Compensation. This organization has more than 50 employers whose purpose is to attract and retain Wisconsin employers through a balanced Worker's Compensation program utilizing the Advisory Council process. The group presented a PowerPoint presentation covering the legislative proposals.

    Ms. Skolaski and Mr. Van Eyck discussed the following proposals:
    Shortening the Statute of Limitations to about three years. Reasons for this proposal are most other states have shorter statute of limitations periods than Wisconsin, Centers for Medicare Medicaid Services uses the statute when determining Medicare Set Aside values and reimbursements, better preserving access to evidence and witnesses and reduction of document retention costs.

    The Department should approve compromise agreements that are signed by consenting adults. Reasons for this proposal are Wisconsin citizens who are mentally competent adults should have  the right to conduct their financial affairs without government involvement, better facilitation of alternative dispute resolution, reduction of backlog of litigated cases and quicker access to settlement proceeds by workers.

    Compensation for permanent total disability should end when an employee reaches the age to be eligible for Old Age Social Security benefits and end the automatic payment of death benefits when an employee receiving permanent total disability dies. are the current practice leads to inefficient use of resources and this is inconsistent with principals behind the Workers Compensation Act to prevent double dipping. It is reasonable to end death benefits when the cause of death is unrelated to the work injury and resources could be better devoted to compensating actual wage loss and medical treatment expenses.

    Allow 15% reduction in compensation under Section 102.58 of the statutes when an employee violates state and/or federal law at the time of injury. Reasons for this proposal are to remove the cause requirement for imposing the reduction, illegal behavior should be discouraged and this proposal is not as extreme as in some other states which at times would disallow all benefits.

    Mr. Glen Boyle gave a presentation about changes to reduce medical expenses. review process should be implemented. There should be a process to coordinate change in health care provider. The WC treatment guidelines in ch.DWD 81 of the Wisconsin Administrative Code need to be updated. A fee schedule for medical fees, prescriptions and implants should be implemented. Employers should have the right to direct care for injured employees. Another option is to consider an opt out option/ERISA program. A prototype for opioid use guidelines and proposed language for prescriptions filled and dispensed outside of a licensed pharmacy were also recommended.

    Mr. Boyle discussed how the Department's reasonableness of fee process is flawed in his view. He believes the burden is lopsided in favor of health care providers. Examples he gave are the Department will issue default judgments against employers in the absence of unusual or extraordinary circumstances; the Department has a tendency to manufacture difficult circumstances even when the health care provider does not argue for this; the Department is more concerned about large bill reductions than extraordinary charges presented; and the Department never considers alternative information on the reasonableness of a fee. Mr. Boyle also discussed the Department does not allow employers to review or evaluate actual invoices for implants and the Department has taken the position that under the law reasonable medical charges for worker's compensation claims are not subject to any private PPO or network contracts. The reason for these proposals is due to the rapidly escalating medical costs in Wisconsin for treatment provided to injured employees.
  3. Dr. Andrew Seter, MD President/CEO Sensia Healthcare: Dr. Andrew Seter gave a presentation about his proposals for legislative changes. Dr. Seter is board certified in occupational and internal medicine. He has worked exclusively in the Worker's Compensation system in Wisconsin for 20 years. He started Sensia Healthcare in the Milwaukee area and has served about 1,200 corporate clients. His organization treated tens of thousands of injured employees. Dr. Seter's organization was the largest occupational medicine provider in Wisconsin. Most of his charges were in terms of tens of dollars to hundreds of dollars. His average charge for services was less that $1,000. He is not a surgical provider. Dr. Seter recommended the following proposals:
    1. Some type of seminars or webinars should be established to provide training and answer questions for doctors about treating employees with occupational injuries.
    2. There should be webinars for doctors to complete to be able to treat patients for work related injuries.
    3. The American College of Occupational and Environmental Medicine (ACOEM) treatment guidelines should be used because these are established from evidence based medicine.
    4. The treating doctor should not be permitted to assign permanent disability ratings because this would take pressure off of the treating physician.
    5. The AMA Disability guidelines should be used for assessing permanent disability to injured employees.
    6. Employees should have the option to voluntarily go to a provider of the employer's choosing for treatment. If the employee chooses this option the employer will agree to provide coverage for the medical services provided up to a certain dollar amount, i.e. $5,000 - $10,000. Treatment will be provided until a formal assessment of work relatedness can be completed. The use of independent medical exams will be waived. If the case is determined to be not work-related later, treatment will be directed through private health insurance.
  4. Amateur Athletic Sports Officials: Keith Noll, Wisconsin Amateur Athletic Union. Mr. Noll has been President of the Wisconsin Amateur Athletic Union since 1994. The Wisconsin Amateur Athletic Union was created in 1888 and is involved in approximately 40 different sports. Mr. Noll appeared at the meeting to express his support for amateur athletic sports officials to be treated as independent contractors. If game officials are classified as employees after decades being treated as independent contractors, he believes a significant number of organizations will cease to provide the sport opportunities that Wisconsin families have come to depend on for their children, as well as adult physical recreation. Mr. Noll provided members of the Council with a written statement expressing his concerns.

    Dave Anderson, Wisconsin Interscholastic Athletic Association. Mr. Anderson has been the Executive Director of the WIAA for the last four years. This organization represents over 500 public, religious and independent schools. This organization sponsors 12 sports opportunities for boys, 11 for girls and 25 state championships. Mr. Anderson appeared at the meeting to request exemption for youth amateur athletic officials from Worker's Compensation coverage. It is understood by the schools and the officials themselves that they are serving as independent contractors. The present system of case by case review, that an official might be determined to be your employee  or might not be  leads to much uncertainty and misunderstanding. It would be a better direction to identify amateur sport officials as exempt within Wisconsin's Worker's Compensation provisions. Mr. Anderson also presented a letter and other handouts supporting his recommendation.

    Woody Wiedenhoeft, Wisconsin Association of School Business Officials. Mr. Wiedenhoeft is the Executive Director of the Wisconsin Association of School Business Officials. Members of this organization include about 80% of the WIAA high schools. In the late 1970's and 1980's Federal Government IRS & Wisconsin Department of Revenue determined that amateur sports officials are independent contractors, not employees. Mr. Wiedenhoeft requested the Council for an exemption of amateur sports officials to be recognized as independent contractors and not as employees. Mr. Wiedenhoeft provided the Council with a letter summarizing his request for an exemption including the IRS guidelines for determining who was an independent contractor or an employee. Mr. Wiedenhoeft expressed his commitment to work with the Council on this issue.

    Deb Archer, Madison Area Sports Commission. Ms. Archer is President and CEO of the Madison Area Sports Commission. Ms. Archer appeared at the meeting to request the Council to classify amateur sports officials as independent contractors and not as employees. Classifying the amateur sports officials as employees has long range financial impact, up to 10 million dollars a year in the Madison area. No one wants to jeopardize money coming in to the State. There is an important impact of the financial implications of amateur sports events being held in the State. Ms. Archer previously sent a letter urging the Council to support classifying amateur sports officials as independent contractors.

    Linda John, Visit Eau Claire and Eau Claire Area Sports Commission. Ms. John is Executive Director of Visit Eau Claire and Eau Claire Area Sports Commission. Ms. John appeared at the meeting to advise the Council of the very competitive nature of the sports business. There is an important market of bringing events to the State of Wisconsin. This involves a significant amount of money. The economic impact of amateur sports business is $8.8 million in the Eau Claire area. Classifying amateur sports officials as employees will result in significant monetary implications for organizations that normally contract for these purposes. These additional burdens would likely create prohibitive costs for hosting events by schools, clubs, and non-profit community groups . reducing their willingness to host additional events and therefore reducing significantly the attraction of new sporting events to Wisconsin. The final result would be devastating to our efforts to grow our economy through sports tourism.
  5. Approval of Minutes: Ms. Nugent moved to approve the minutes of the January 8, 2013 meeting without correction; seconded by Ms. Bloomingdale. The minutes were unanimously approved.
  6. Correspondence: Mr. O'Malley reviewed the correspondence received by the WCAC since the last meeting. A letter dated December 27, 2012 was received from Ms. Lori A. Manion, Rib Lake School District Administrator, requesting amateur sports officials to be classified as independent contractors and not as employees of the school districts that contract for their officiating services.

    A letter dated December, 2012 was received from Mr. Brandon W. Robinson, District Administrator for Unity School District, requesting amateur sports officials to be classified as independent contractors and not as employees of the school districts that contract for their officiating services.

    An email was received from Mr. Rick Schultz, requesting that amateur sports officials be classified as employees and not independent contractors.

    A letter dated January 28, 2013 was received from Ms. Linda John, Executive Director of Visit Eau Claire and Eau Claire Area Sports Commission , and Mr. Ken Van Es, Chairman of the Eau Claire Area Sports Commission, requesting amateur sports officials to be recognized as independent contractors and not as employees of the organizations that contract for their officiating services.

    A letter dated February 4, 2013 was received from Mr. Joel Weitz, Chair of Greater Madison Convention and Visitors Bureau and Ms. Deb Archer, CEO of Greater Madison Convention and Visitors Bureau requesting amateur sports officials to be classified as independent contractors and not as employees.

    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 January 21, 2013 was received from Ms. Susan Garot, Chair of the Board of Directors of the Greater Green Bay Convention and Visitors Bureau and Mr. Brad Toll, President/CEO of the Greater Green Bay Convention and Visitors Bureau, recommending that amateur sports officials be classified as independent contractors and not as employees.

    A letter dated January 16, 2013 was received from Assistant Attorney General Richard Briles Moriarty, suggesting that s. 102.23, Wis. Stats., should be amended to clarify the parties that must be included in judicial reviews.

    A letter dated February 8, 2013 was received from Mr. Roger Wagner, recommending some legislative changes to the Workers Compensation Act.
    1. Employers should be allowed to direct treatment for injured employees by selecting the treating practitioner.
    2. Require employees to give notice of injuries by notifying their supervisors of a work-related injury immediately or prior to leaving the workplace that day.
    3. Eliminate compensability for aggravation of underlying or pre-existing conditions.
    4. Establish consequences or sanctions for employees who do not appear for scheduled appointments with their health care providers for no valid or legitimate reason.
    5. Eliminate referrals by practitioners selected by employees to other health care providers.
    6. Establish education or training for health care providers about the right of employers and worker's compensation insurance carriers to have access to information and records related to work injuries without the need for a medical release authorization.
    A letter dated January 29, 2013 was received from Ms. Deb Archer, President and CEO of the Madison Area Sports Commission, strongly urges that amateur sports event officials be classified as independent contractors and not as employees.

    A letter was received from Mr. Jerry Fiene, Executive Director, Wisconsin Rural Schools Alliance, strongly urges the Council to classify amateur sports officials as independent contractors and not as employees.
  7. 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 later this month and in March. The auditor will prepare an audit report and the report is expected to be completed by May or June of 2013.
  8. Permanent Total Disability Study Committee: 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 (a six month period). To date, the Department has received about 200 hearing applications claiming compensation for permanent total disability. Two of these cases were resolved by settlements. About half of these cases have already been scheduled for hearing. 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.
  9. 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 February 11, 2013.Mr. Krueger indicated fiscal year 2013 revenues have been $2,083,350, expenditures have been $1,746,655. Mr. Krueger indicated the unencumbered cash balance is $1,480,103 and accounts receivable are $648,725.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 .Effective April 17, 2012, supplemental benefit reimbursements paid before 2011 had to be requested no later than December 31, 2012. Mr. Krueger indicated that the Department is closely monitoring the Fund. Mr. Krueger stated that based upon the statutory changes effective in April, 2012, DWD has the authority to prioritize payments once the fund reaches encumbrance by known claims, or set a date after which payment of those claims will be reduced, or set a date after which no new claims will be paid from the WISBF once the Fund reaches 85% encumbrance by known claims.
  10. Other Business: At the next meeting scheduled on March 12, 2013 the members representing labor and management will exchange & discuss their proposals for legislative changes.

    Mr. Ron Kent provided copies of an article dated February 7, 2013 from the Milwaukee Journal-Sentinel about the state business climate rated as improving. In this article the business climate was ranked as 13th in the country and ahead of Illinois. In another article, dated April 27, 2011, about a study by Ernst & Young concluded that Wisconsin has the fourth lowest tax rate on new business investment. Mr. Kent noted in addition that Governor Walker in his State of the State speech said that based upon a recent survey , 93 percent of the employers thought that Wisconsin was headed in the right direction. Mr. Kent further noted that the World Bank in a 2012 report rated the United States as the fourth best country to do business in throughout the world. Mr. Kent stated that Wisconsin is a good state to do business in, it has a good business climate and its general ranking has advanced. There is countervailing information on the economy, including worker's compensation. The silence of the labor representatives to earlier presentations today is not to be taken as agreement with those statements
  11. Adjournment: Motion by Ms. Nugent, second by Ms. Bloomingdale to adjourn to closed caucus and to adjourn the open meeting. The motion carried unanimously and the meeting was adjourned at approximately 1:00pm
  12. Next meeting: March 12, 2013