Worker's Compensation Advisory Council

Council on Worker’s Compensation
Meeting Minutes
Madison, Wisconsin
February 28, 2007

Members present:  Ms. Bean, Mr. Beiriger, Mr. Furley, Ms. Huntley-Cooper, Mr. Kent, Mr. Newby, Mr. Redman, Mr. Scott, Mr. Schimke, Mr. Shaver, Ms. Vetter

Excused: Mr. Brand, Mr. Buchen, Mr. Scott, Mr. Olson

Staff present: Mr. Conway, Mr. O’Malley, Ms. Knutson, and Mr. Krueger

  1. Call to Order/Introductions: Ms. Huntley-Cooper convened the Worker’s Compensation Advisory Council (WCAC) meeting at 10:00 a.m. in accordance with Wisconsin’s open meetings law. WCAC members, staff and members of the audience introduced themselves.
  2. Minutes: The minutes of the February 1, 2007 meeting were approved without corrections.
  3. Public Rule Comment - Anthony Driessen:Tabled due to Mr. Driessen's absence.
  4. Health Care Providers Advisory Committee Report (DWD 81): Mr. O’Malley reported that at the February 16, 2007 meeting the committee reviewed the final draft of the Medical Treatment Guidelines (proposed administrative rule DWD Chap. 81). The rule draft will be posted on the WCD website along with the analysis of the new rule. The rule was filed with the Legislature on February 15, 2007. A public hearing on the amendments to DWD Chapter 80 and 81 is scheduled for March 22, 2007 from 9:00 a.m. to noon. The department will use the same public hearing procedure as is used for the WCAC public hearings. The public hearing will be held via videocast from the Pyle Center on the UW Madison campus. Satellite hearing sites will be connected in Milwaukee, Green Bay, Eau Claire, La Crosse and Superior. The committee suggested two other amendments to the Medical Treatment Guidelines. One amendment is to clarify the guidelines will be used in resolving necessity of treatment disputes. The committee also suggested further changes to the definition of complex regional pain syndrome in the rule. The goal is for the rule amendments to be effective August 1, 2007.

    Ms. Huntley-Cooper commented that the committee did a wonderful job in reviewing and making suggested changes to the guidelines. The committee members engaged in discussions concerning their role in making further suggestions for statutory or rule changes. Ms. Huntley-Cooper relayed to the committee that their mission was solely to review and make recommended changes to the Medical Treatment Guidelines. Any other suggested changes to the statutes or rules should be communicated through the members’ advocacy groups. The committee members also suggested that in the future, other amendments to the treatment guidelines should be considered in areas that were not address in Minnesota; specifically, allergy/dermatitis and pulmonary conditions.
  5. Permanent Total Disability Committee Report: Ms. Knutson reported the committee had not met since the last meeting on January 23, 2007. The WCD provided to the PTD committee members a draft of the proposed two options for increasing PTD benefits as discussed at the last PTD committee meeting. No further information or recommendations were requested from the PTD Committee at this time. The PTD Committee meeting tentatively scheduled for March 8th was cancelled.
  6. Other Reports: Mr. Conway reported on the Loggers Committee. The consultant is working on a proposal for group self-insurance for loggers addressing such issues as capitalization, premiums and excess insurance. The WCD is conducting a desk audit of loggers involved in contracts on public lands, specifically looking at coverage and compliance issues. The Department of Natural Resources requires a worker’s compensation policy certificate in their contracts. Of the 220 loggers reviewed, 45 had no worker’s compensation insurance. Field audits would need to be performed to ensure compliance. The Wisconsin Compensation Rating Bureau (WCRB) is in the process of creating a mechanized logging class, which may be effective by 2008 or 2009. The committee members will meet with the Rating Committee on March 6, 2007 to discuss the possibility of developing a certified loggers program that would grant a loss experience reduction in exchange for participation in a training program. Initially, the training might be provided at no cost. It is envisioned that obtaining a certificate will result in a 10% reduction temporarily, with actual losses later driving the premium. A three to four year break in premiums would be required before the loss experience would go down, resulting in lower premiums. Some proposals by the Loggers Committee may not come within the jurisdiction of the WCAC. Mr. Beiriger emphasized that the Loggers Committee needs to be as specific as possible in any proposals that need to come to the WCAC.

    Mr. O’Malley reported on the litigated caseload. In December 2006, the number of cases ready for hearing was 6021; by the end of January 2007, the number had dropped to 5873. The WCD is hoping the trend will continue. For new applications for hearing, they should receive a hearing in 9 or 10 months; for cases already waiting for hearing, the wait time can be as long as 14 months to a scheduled hearing date. The WCD is starting a few projects to work down the pending caseload including assigning an experienced administrative law judge (ALJ) to hold settlement conferences. There is a lot of time spent by the ALJ reviewing files and issuing correspondence on cases.
    Mr. Shaver requested that the WCD provide information for future WCAC meetings on litigated cases including: the number of ALJs employed and on the calendar; the number of cases waiting for hearing; and how long currently scheduled cases have been waiting for a hearing. Ms. Vetter commented that it is unacceptable for 6000 claimants to be waiting for a hearing. Mr. O’Malley indicated that for cases involving severe financial hardship, the WCD has an expedited hearing process. Mr. Kent indicated that the WCD should have reserve ALJs holding hearings and serving as arbitrators. The reserve ALJs could work on a limited basis when there is a large caseload or a need for an ALJ on an expedited basis. Mr. Conway commented that the WCD is reviewing the scheduling process including the number of cases scheduled on a calendar, hiring retired ALJs, and other factors. There is a relatively small group of attorneys that handle worker’s compensation hearings as a large part of their practice. The attorneys are sometimes not available for hearing or have a large caseload resulting in scheduling delays. Mr. John Griner IV, attorney with St. Paul Travelers Insurance, responded that the WCD is very accommodating in scheduling the small group of attorneys, making efforts to not schedule the attorneys to be in two places at once. He emphasized that clients have a right to choice of counsel. In addition to the attorneys and ALJ, in order to hold a hearing, the department needs a hearing room, a court reporter and a case that is ready to be heard. Mr. Conway responded that with rare exceptions, the WCD has not cancelled a hearing due to the unavailability of a court reporter or a hearing room. The WCD is currently renting hearing rooms and is paying over $330,000 for contract court reporters. There are some scheduling factors that are beyond the WCD’s control, including the availability of outside attorneys. The WCD is working on finding a way to get the parties together to avoid settlements on the courtroom steps. If the parties will settle the case and a hearing is not necessary, another case could be scheduled for hearing. Mr. Conway emphasized that Sec. Gassman wants to see the hearing backlog problem resolved. Mr. Dennis Wicht, attorney representing injured workers, stated that attorneys do not have authority to settle cases from their clients until the hearing is imminent. Ms. Huntley-Cooper indicated that Sec. Gassman met with Attorneys Mike Gillick and Paul Riegel on February 23, 2007; Ms. Huntley Cooper and Mr. Lee Shorey from WCD were also present. Attorney Riegel provided information on the one-day “settlement day” mediations scheduled by Frankenmuth Insurance. Frankenmuth Insurance hires a retired ALJ to act as a mediator for 8 to 12 cases. Attorney Riegel has indicated that Frankenmuth Insurance has had success in resolving cases both where litigation is pending and in cases where the injured worker has not yet filed an application for hearing. Ms. Huntley-Cooper indicates that the WCD will be implementing some pilot projects to work down the pending caseload. Ms. Huntley Cooper is willing to entertain ideas from individuals or groups on reducing the caseload.

    Mr. O’Malley reported the Attorney Fee Discussion Group met on February 23, 2007. Attorney John Neal is a member of that group and he reported there was a productive discussion among attorneys, the insurance representatives and ALJs on the issues surrounding attorney’s fees. The group discussed specific ideas that will be drafted, reviewed by the group members, and presented to the WCAC soon. No further meetings are planned.
  7. Correspondence: Mr. Conway reported the department received an inquiry from State Representative Eugene Hahn on behalf of his constituent, Ms. Paula Plishka, the EMS Director for Merrimac Fire & Rescue, Inc. Ms. Plishka is requesting that post-traumatic stress disorder be specifically covered as a work-related injury. Mr. O’Malley explained that in order for non-traumatic mental injuries to be compensable, the employee must prove that the stress was extraordinary and beyond the stress that all employees experience. Mental conditions following a physical injury are not held to this standard. The standard for non-traumatic mental injuries applies to all employees; no specific employees are prohibited from making a claim. The department sent a response to Ms. Plishka with a copy to Representative Hahn.

    Mr. Conway also reported the department received correspondence from the Wisconsin Physical Therapy Association objecting to the creation and implementation of a fee schedule for worker’s compensation in Wisconsin. They indicate that a fee schedule may have a negative effect on patient satisfaction with medical care.

    Finally, Mr. Conway reported Ms. Connie Coddington, Christian Science Committee on Publication for Wisconsin, sent in correspondence including suggested amendments to Wis. Stat. §102.42 to eliminate the option for employers to elect out of Christian Science treatment for worker’s compensation injuries. Her comments are already included in the WCD’s compilation of proposals from the public. Mr. O’Malley explained that Christian Science treatment and the option to elect out has been in effect since 1919. The WCD’s file on employers electing to opt out of Christian Science treatment is incomplete. The City of Milwaukee is the most recent employer to file the election with the WCD. If the employer files the election, the charge for Christian Science treatment is not compensable and employee is responsible for payment. When the law went into effect, employers may have felt that Christian Science treatment was not effective. The worker’s compensation law was voluntary at that point in time. Ms. Coddington explained that Christian Science practitioners are licensed through the church and have standard fees of usually $10 to $20 per day. The fee charged is at the discretion of the practitioner. Mr. O’Malley indicated that eliminating the election to opt out in the current statute will not have any implications regarding other kinds of alternative medical treatments.
  8. Management Proposals:  Mr. Beiriger reviewed the management proposals. Following is a brief description of each proposal:

    1. Provide that the exclusive remedy applies to contractors and subcontractors in the construction industry. In construction contracts, if a third party action is filed against the general contractor, the risk is transferred back to the subcontractor, so that the subcontractor pays for the worker’s compensation coverage and is required to reimburse the general contractor for the third party suit.

    2. Provide for a medical fee schedule (specific proposal to be presented at the next meeting).

    3. Amend §102.17(4) to provide for barred claims, the employee must have had the prosthesis implanted prior to the statute of limitations running.

    4 & 5. Amend §102.555 to provide that any audiogram closest to the last date of employment will provide the basis for any calculation of hearing loss; eliminate payment of medical expenses or hearing aids for cases where there is no compensable hearing loss.

    6. Amend §102.29 to provide that an employee of a temporary help agency cannot sue an employee of a second temporary help agency (or the second temporary help agency) if the same employer compensates both temporary help agencies.

    7 & 8. Amend §102.35(3) to indicate that unreasonable refusal to rehire benefits are only available if the employer retaliates against the employee for filing a worker’s compensation claim; to allow discovery in these claims.

    9. Provide that permanent total disability benefits cease once an employee reaches the age of 67. The intent is to try and find resources available in the system to increase supplemental benefits.

    10. Eliminate entitlement to benefits for pre-existing disabilities from the Second Injury Fund. The purpose behind the current statute is now addressed by the Americans with Disabilities Act.

    11. Amend §102.66(1) to eliminate payment of benefits for barred and previously compromised occupational hearing loss claims.

    12. Eliminate death benefit payments for employees who are permanently and totally disabled and who die from causes not related to the work injury.
  9. Labor Proposals: Mr. Newby and Mr. Kent reviewed the labor proposals. Following is a brief description of each proposal:

    1. Increase permanent total disability benefits by bringing the benefit rates up to
    a 6-year lag time (i.e. Option 2 of the 2005 PTD Committee recommendations). There would be some affect on the Social Security offset. Employees need an adequate level of benefits to live on. Mr. Conway explained the cost for current PTD claims to be approximately $299 million. For claims beginning in 2008, insurance carriers could charge a premium for those benefits.

    2. Permanently change the permanent partial disability (PPD) rate to provide that the maximum rate is 34% of the maximum temporary total disability rate for the given year.
  10. Adjournment: Discussion on all agenda items concluded and the meeting was adjourned at approximately 2:00 p.m.

    Future meeting dates are as follows:

    Thursday, April 5, 2007
    Thursday, May 3, 2007
    Thursday, May 17, 2007
    Thursday May 31, 2007
    Target date for agreed bill is June 1, 2007
    Thursday June 7, 2007
    Wednesday, July 11, 2007
    Wednesday, August 1, 2007
    Thursday, September 6, 2007