Website - Division of Worker's Compensation
Email - WC
Compensation Advisory Council
Council on Worker’s Compensation
March 22, 2005
Members present: Mr. Beiriger, Mr. Brand, Ms. Connor, Mr. Furley, Ms.
Huntley-Cooper, Mr. Kent, Mr. Newby, Mr. Olson, Mr. Shaver, Ms. Vetter, and Mr.
Excused: Ms. Bean and Mr. Buchen
Absent: Mr. Gordon
Mr. Conway, Mr. O’Malley, Mr. Shorey, Mr. Krueger, and Ms. Knutson
- Call to Order/Introductions:
Ms. Huntley-Cooper convened the Worker’s Compensation Advisory Council (WCAC)
meeting in accordance with Wisconsin’s open meetings law.
Mr. Brand moved adoption of the minutes of the February 21, 2005 meeting;
Mr. Beiriger seconded the motion. The motion was unanimously approved.
- Public Comments: Ms. Debra Guenterberg and Mr. Robert
Guenterberg appeared before the WCAC. Mr. Guenterberg suffered a 1997 work
injury which resulted in permanent disability. Ms. Guenterberg expressed
concern regarding the length of time before a formal hearing is held in
disputed cases. Many permanently injured workers find themselves in severe
financial distress while the dispute is being resolved. Ms. Guenterberg
expressed concern that permanently and totally disabled workers are
forgotten with no consideration for the effect of the injury on the families
and benefit rates are not escalated. Mr. Newby explained that permanent
total disability benefit rates were currently being studied by a
subcommittee with recommendations to be presented to the WCAC. Ms.
Guenterberg raised other issues including postponements, definition of
permanent total disability, mental health issues, hiring vocational experts
and payment of attorney’s fees out of the injured worker’s benefits. Mr.
O’Malley explained that drafting a definition of permanent total disability
that everyone would agree to is not realistic. Permanent total disability is
determined on a case by case basis considering the statutory presumption and
case law. For more complicated cases, attorneys can be of assistance. In
cases of hardship, if the parties are ready, cases can be scheduled on short
notice. Ms. Huntley-Cooper explained that the WCD has a committee addressing
hearing backlog issues.
Mr. Ed Hayden from Allied Construction appeared and expressed concern with
ERISA health funds (Taft-Hartley Funds) making advance payments for medical
expenses for work-related injuries and not being reimbursed when the
worker’s compensation dispute settles. Carriers settle the claim and include
a hold harmless clause in the settlement agreement. Carriers often only
offer a small percentage of the medical expenses paid by the health fund.
The money in the health fund belongs to the participants. If the employee’s
attorney provides evidence that the injury may not be work-related, the
health fund will agree to a reduction in their reimbursement amount. Mr.
Hayden suggested that the WCAC enact a change in the law prohibiting
carriers from entering into hold harmless agreements. The health fund is
looking at ways to collect money from the employees and their attorneys in
these situations. Mr. Welnak commented that some health funds do not pay the
medical bills until the employee has exhausted the worker’s compensation
- Subcommittee Reports:
Medical Cost Committee – Mr. O’Malley presented the committee’s three
recommendations for changes in Chapter 102, Wis. Stats pertaining to medical
The committee recommends that Wisconsin adopt a pharmacy fee schedule. This
proposal requires pharmacies to provide the generic equivalent of a name
brand drug unless no generic drug equivalent is available or the prescribing
physician provides a “no substitutes” order. Prescription drugs will be paid
by a formula with no balance billing to the injured worker. The formula will
include the average wholesale price as listed in the Blue Book or Red Book
plus a dispensing fee. State and federal taxes would apply. If there is a
dispute as to whether the injury is work-related, the pharmacy fee schedule
would not apply. The WCAC agreed with this proposal and suggested that the
doctor indicate on the prescription that the drug was necessary to treat a
The second recommendation is that Wisconsin adopt the Minnesota Treatment
Parameters. The department would adopt a rule to include relevant provisions
as stated in the Minnesota Treatment Parameters. The treatment parameters
would be used to evaluate the necessity of treatment in the event of a
dispute. Some of the provisions of the Minnesota Treatment Parameters
including pre-certification and employer choice of doctor would not apply to
Wisconsin and would not be included in an amendment to Wis. Admin. Code §DWD
80.73. If there is a dispute as to whether the injury is work-related, the
parameters would not apply until adjudication has been made on that issue. A
committee of experts would be formed by the department to amend the rule. If
no alternative is adopted by a date certain, the Minnesota Treatment
Parameters would be adopted initially. Due to changes in the rulemaking
procedures, the process to promulgate new rules takes approximately one
year. The WCAC agreed with this proposal. The WCD will begin the process to
modify the Minnesota Treatment Parameters to conform to Wisconsin law.
The final proposal involves restricting “outlier” health care providers. The
purpose of the proposal is to protect injured workers from treatment by a
health care provider, or a medical examiner hired by a payer that in the
opinion of peers is using a pattern of treatment, evaluation, or diagnostic
practices that substantially deviates from generally accepted standards for
the conditions presented in the injury or disease. Criteria (involving
complaints by claimants, insurers/self-insured employers or providers, or a
number of necessity of treatment disputes finding treatment to be
unnecessary in the amount of $1000 or more) would be established for
evidence necessary to trigger an investigation. The complaint would be
reviewed by WCD, investigated, and if reasonable cause exists the WCD can
take action including commencing a peer review, issuing an order suspending
ability of the provider to treat occupational diseases for a period up to
five years and referral to the Department of Regulation and Licensing for
possible disciplinary action. The WCAC members raised various issues with
this proposal including the criteria for filing a complaint with the WCD and
possible retaliation by providers. Further action on this proposal was
tabled until the next meeting.
Permanent Disability Rates – Mr. Shorey reported that a report setting forth
different alternatives with actuarial information would be provided to the
WCAC members before the next meeting. Included in the alternatives is a cost
of living annual adjustment, elimination or partial elimination of death
benefits if the injured worker dies due to causes other than the work
injury, an age limitation and variations in lag time before the benefit
increases take effect. Issues to consider include the effect on the Social
Security offset and funding. A definition of permanent total disability is
not included in the proposal. It is anticipated that if the WCAC accepts one
of the alternative proposals, it would become part of the agreed bill.
- Correspondence: The WCAC was presented with letters
from the Wisconsin Compensation Rating Bureau (WCRB) and the Office of the
Commissioner of Insurance (OCI) regarding the Professional Employer
Organization (PEO) proposals. In addition, the WCD received an e-mail from
Mr. Jeff Lavitch. His proposal will be included in the public proposals
compiled by the WCD.
- Update on DWD WC Division's Law and Administrative Rule Proposals:
Mr. O’Malley explained the department proposals (all references are to the
2. Subsection (b) was added to conform to the Unemployment Insurance (UI)
Division’s proposal following a Labor and Industry Review Commission
decision in a UI case. Mr. Krueger indicated that the WCD would be meeting
with WCRB, OCI and PEO staff to discuss possible revision of the
department’s proposals before the next WCAC meeting. The WCRB and OCI have
concerns regarding the effect of the proposal on experience ratings.
12. The WCD modified the language of this proposal to coincide with the
Unemployment Insurance statute, §108.14(7)(b). Mr. O’Malley reported that
the WCD currently does not provide direct connectivity to organizations to
retrieve data. The organization provides the data elements needed for their
research and WCD mines the data, stores it in a password-protected zip-file,
and e-mails the data to the organization.
25. This proposal amends DWD 80.50 to update the rule to include reference
to increased PPD benefits for injuries to the dominant hand. This has no
effect on benefits for disfigurement.
26. This proposal amends DWD 80.68(1) and (3) to correct the statutory
27. This proposal amends DWD 80.72(2)(L) to update the rule to include
advanced practice nurse prescribers (APNPs).
28. This proposal amends DWD 80.73(2)(d) to update the rule to include
physician’s assistants and APNPs.
29. A new subsection is created in response to the recent Wisconsin Supreme
Court decision in Gehin v. Wisconsin Group Ins. Board, No. 03-0226 (Wis.
Feb. 23, 2005). In that case, the court found that uncorroborated medical
reports constituted hearsay and could not be relied upon by the
administrative agency in issuing a decision.
30. This proposal addresses the same concern as #29 in reference to
certified reports of industrial safety specialists.
- Labor and Management Proposals: Labor and Management exchanged
Regarding Labor proposal # 1, Mr. O’Malley commented that the WCD was
approached by the Division of Vocational Rehabilitation indicating that DVR
may not be able to pay for tuition, fees and books for employees with
work-related injuries. Mr. Kent commented that as a result of the DVR budget
reduction, they would make an effort to seek revenue streams from other
sources to pay for tuition, fees and books.
Regarding Management proposal #10, Mr. O’Malley indicated that when the
proposal was introduced during the last agreed bill process that the
Wisconsin Judicial Commission indicated the Wisconsin Supreme Court must
agree that administrative law judges are covered by the Code of Judicial
Conduct. Previously the Chief Justice had expressed an opinion that
administrative law judges are not in the judicial branch of government. By
administrative code, the WCD could adopt some of the provisions of the Code
of Judicial Conduct. The state civil service rules regarding discipline
apply to administrative law judges. Some aspects of the Code of Judicial
Conduct include off-work conduct, including partisan political activities
that really do not apply to administrative law judges because they are not
elected. The members of the WCAC indicated the same concerns raised
regarding ALJ conduct and demeanor during the last agreed bill session still
- Adjournment: Discussion on all agenda items concluded
and the meeting was adjourned. The next meeting has been scheduled for April
13, 2005 beginning at 10:00 a.m. Future meetings are also scheduled for
April 26, 2005 beginning at 10:00 a.m. and May 11, 2005 beginning at 1:00
p.m. All meetings are scheduled at Holiday Inn Madison East.