Website - Division of Worker's Compensation
Email - WC
Compensation Advisory Council
Council on Worker’s Compensation
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
- 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.
- Minutes: The
minutes of the February 1, 2007 meeting were approved without corrections.
- Public Rule Comment -
Anthony Driessen:Tabled due to Mr. Driessen's absence.
- 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
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.
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
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.
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
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
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
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
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.
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.
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