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Worker's Compensation Advisory Council
Council on Worker’s Compensation
April 5, 2007
Members present: Ms. Bean, Mr. Beiriger, Mr. Brand, Mr. Buchen,
Mr. Furley, Ms. Huntley-Cooper, Mr. Kent, Mr. Newby, Mr. Olson, Mr. Redman, Mr.
Scott, Mr. Schimke, Mr. Shaver, Ms. Vetter
O’Malley, Ms. Knutson, Mr. Krueger and Mr. Topp
- 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 28, 2007 meeting were approved as distributed.
- Health Care Providers Advisory Committee Report (DWD 81): Mr.
O’Malley reported a public hearing on the proposed changes to Wis. Admin.
Code Chap. 80 and the new proposed Chap. 81, was held on March 21, 2007 via
videoconference from UW Madison Pyle Center. Videoconference locations
included Eau Claire, Green Bay, La Crosse, Superior and Milwaukee. Four
individuals offered comments during the three-hour public hearing. The
projected effective date for the rule changes is August 1, 2007. The draft
Medical Treatment Guidelines came back from the Legislative Council with
suggested drafting convention changes. Once the changes are made, the
Medical Treatment Guidelines will be available on the WCD’s website with
paper copies provided to the WCAC members for the next meeting.
Permanent Total Disability Committee Report: Ms. Knutson reported the
committee had not met since the last meeting on January 23, 2007. There have
been no further for information from the PTD Committee or the WCAC.
At this time there are no future meeting dates planned.
Other Reports: Mr. Krueger reported on the Loggers Committee. The
Wisconsin Compensation Rating Bureau (WCRB) is in the process of creating a
mechanized logging class, which may be effective by 2008 or 2009. A speaker
will appear at the next WCAC meeting to present a review of a group
self-insurance proposal for loggers.
Ms. Knutson provided information on the litigated case backlog. The total
number of pending applications for hearing in ready status as of the end of
February 2007 was 5804, which includes over 1000 cases that were scheduled
at that time for a hearing, prehearing conference, or settlement conference.
Data will not be available for the month of March 2007 for a few more days.
The WCD’s IT staff that handles for data just returned from
maternity leave. Additional information requested from the WCAC will be
available for the next meeting. Mr. Shaver inquired if the WCD was
considering proposing a statutory change requiring a certificate of
readiness. Ms. Huntley-Cooper explained that the WCD will try and implement
a certification of readiness process as a matter of policy; no statutory
change is proposed at this point. Mr. O’Malley explained that the WCD has
some discretion in scheduling cases. No one has used the joint certificate
of readiness process that has been in place for almost one year. The new
process would involve an applicant’s certification of readiness. Mr. Kent
indicated that historically the WCAC has been involved in the analysis of
pending litigated cases and has proposed the addition of administrative law
judges when necessary to handle an increase in caseload. Mr. O’Malley
commented that the spike in the number of litigated pending cases was due to
ALJ vacancies. The number of cases the WCD currently has scheduled is not as
high as it needs to be due to staffing issues in the hearings unit the last
four years. The goal is to have 1500 cases scheduled at any point in time.
The historic lowest point is only 600 cases scheduled.
Ms. Knutson reported that some members of the Attorney Fee Discussion Group
were proposing statutory and administrative rule changes. ALJ Wally Thurow
authored a memorandum on the proposed changes discussed by the group. There
is some concern regarding the constitutionality of the proposed changes. The
attorney members of the group recommend that the $100 maximum fee in cases
where there is no dispute should be increased to $250 and that the 20%
limitation on attorney’s fees be waived in penalty claims. Mr. Scott
indicated the group would schedule another meeting to further discuss the
proposals and would report back to the WCAC. Mr. Olson is the other WCAC
member who is participating in the discussion group.
Correspondence: Mr. O’Malley reported the department received an
inquiry from Senator Risser regarding the lack of a cost of living
adjustment for permanent total disability benefits. Ms. Huntley-Cooper
responded on behalf of the WCAC that a committee has been formed to study
The department received a letter from Linda Devitt in support of a
recommendation to repeal the employer’s right to opt out of Christian
Science treatment (i.e. referenced in Wis. Stat. §§102.42 (1) and
Norman Bair sent in a letter in support of Christian Science treatment, as
did Thomas Mangelsdorf.
Dr. Goodman sent in a letter and an article from the Journal of Occupational
and Environmental Medicine regarding return to work and medical management
of worker’s compensation injuries.
Mr. Shaver indicated the WCAC members had received electronic correspondence
from Jason Lien regarding his concern that health insurance premiums are not
paid by the employer during his work injury period. Ms. Huntley-Cooper
indicated that the WCD had not yet responded to this inquiry. If issues
concern an individual claim, the WCD claims staff addresses the issues
directly with the individual.
Mr. O’Malley advised that two bills are pending in the State Legislature
that impact worker’s compensation, but they have not yet been introduced.
Rep. Gary Bies is sponsoring a bill to create a new section, §102.03(6), to
create a presumption for firefighters that heart, cerebrovascular accident
(i.e. stroke) and respiratory disease is work-related. This presumption
would include volunteer firefighters. The language mirrors the presumption
currently set forth in Wis. Stat. Chap. 891 with the exception that it
includes cerebrovascular accidents and does not include minimum working
hours as a firefighter. The presumptions in Chapter 891 apply to duty
disability benefits administered by the Department of Employee Trust Funds,
and do not apply to worker’s compensation benefits. Currently Wis. Stat.
Chap. 102 does not contain any presumptions for benefit eligibility
purposes. Mr. Newby questioned whether Chapter 102 is the appropriate place
for this amendment to include volunteer firefighters in the presumption.
There needs to be more discussion on the length of service and exposure to
occupational hazards to arrive at a reasonable presumption of
work-relatedness for heart and respiratory conditions. Mr. Kent commented
that the issue of medically documented increased incidence of disease for
firefighters, including volunteers, need to be considered, including
epidemiological research. The WCAC requested that the WCD refer the matter
to interested members of the Health Care Provider Advisory Committee for
review and report back to the WCAC at the next meeting. The WCAC requested
that WCD send a letter to the bill sponsor, copy to the chair of the Labor
Committee, indicating that the bill is under review by the WCAC and its
subcommittee. The role of the Health Care Provider Committee was confirmed
by the WCAC. If there is an interest from members of the committee to take
on additional tasks such as the firefighter’s issue, individual members may
do so under a separate committee structure or through their medical liaison
Rep. Gary Sherman is sponsoring a bill to amend Wis. Stat. §102.27(2) to
permit payment of attorney’s fees on the reimbursement to governmental units
for public assistance benefits for medical costs or living expenses related
to the worker’s compensation claim. Mr. Buchen suggested that the Attorney
Fee Discussion group review this proposed legislation in conjunction with
their overall review of attorney compensation in worker’s compensation
cases. Under Wis. Stat. §102.14, the WCAC is charged with providing comment
to the Legislature on any pending bill that impacts Chapter 102. The WCAC
requested that the WCD send a letter to the bill sponsor, with a copy to the
chair of the Labor Committee, indicating that the bill has been referred to
the Attorney Fee Discussion Group and request that the bill not be
introduced until the WCAC has considered the Attorney Fee Discussion Group’s
Old Business: Mr. Newby commented that at the last meeting,
Management requested more time to submit a medical fee schedule proposal. A
medical fee schedule has the potential for unintended consequences and
careful research on any projected results is needed. While the Worker’s
Compensation Research Institute’s data shows considerably higher costs for
medical procedures, the total medical costs in Wisconsin for worker’s
compensation claims is not out of line. Mr. Beiriger responded that
Management realizes they are suggesting a major change and they need to
present a concrete proposal that is understandable. In looking at benefit
payment trends, the proportion of benefits paid for medical expenses
continues to increase. Medical costs are a major cost driver in the system
and need to be addressed. Mr. Newby indicated that the most recent data
indicates total medical costs are declining. Mr. Beiriger responded that
Management is trying to address the rate of growth. Management’s goal is to
be able to advance their proposal at the next meeting.
New Business: Mr. Newby requested that the WCD obtain a Worker’s
Compensation Rating Bureau report of the loss ratios for worker’s
compensation over the past several years for the next meeting. The report
should include the most recent data available.
The WCAC took action on the Department’s proposals as follows (numbers refer
to the Department proposal numbers as set forth in the February 1, 2007
1. Amend §102.16(2m)(g) to delete reference to the Minnesota Rules in the
promulgating authority for medical treatment guidelines. Agreed.
2. Amend §102.29(1) to provide that the Work Injury Supplemental Benefit
Fund will share in any third party settlement proceeds. Tabled.
3. Amend §102.425(3)(a)1 to delete reference to the Blue Book, which is out
of print. Agreed.
4. Create §102.425(3)(r) and (s) to provide a dispute resolution process for
pharmacy fee disputes similar to the dispute resolution process in
§102.16(2) for reasonableness of fee disputes. Agreed. (A speaker from
Navitus may be invited to a later meeting to present information on savings
on drug purchases.)
5. Amend §102.48(2) to require any person claiming death benefits for
partial dependency to produce documentary evidence of dependency, rather
than submitting testimony only. Tabled. Labor requested that the WCD redraft
the language to address their concerns with requiring documentary evidence.
6. Amend §102.64(2) to provide that the Department of Justice represents the
WISBF for payments into the Fund for illegal employment of minors under
7. Delete §102.65(3) which provides for reductions of payments into the
WISBF when the Fund balance exceeds three times the amount paid out of the
Fund the previous year. Agreed.
8. Amend §102.80(3)(ag) to eliminate the requirement to consider incurred
but not reported (IBNR) claims in calculating expected losses to the
Uninsured Employers Fund (UEF). Agreed.
In summary, there was unanimous agreement on all of the Department proposals
except #2 and #5. No action was taken on the Labor or Management proposals.
Adjournment: Discussion on all agenda items concluded and the
meeting was adjourned to closed caucus at approximately 2:00 p.m.
Future meeting dates are as follows:
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