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Worker's Compensation Advisory Council
Council on Worker’s Compensation
Crowne Plaza
Madison, Wisconsin
April 13, 2009

Members present:   Mr. Beiriger,  Mr. Brand,  Mr. Collingwood, Ms. Connor (for Mr. Scott), Ms. Huntley-Cooper, Mr. Kent, Ms. Nugent, Mr. Olson, Ms. Pehler, Mr. Redman, Mr. Schwanda, Ms. Vetter

Excused:   Mr. Buchen, Mr. Newby

Absent: 

Staff present:   Mr. Aiello, 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 approximately 11:00 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 March 27, 2009 meeting were unanimously approved with correction.
    
   
3. Public Comment: Ms. Patricia Grillot stated that she was a family nurse practitioner and suffers from PTSD and brain damage from her injury. Because medical treatments for an injury may not be available until years after the injury, she feels that a 12 year limit on payment of benefits is unreasonable.
   
   
4. Correspondence: None.
   
   
5. Reports:  Ms. Charlene Dwyer, Division Administrator for DWD Division of Vocational Rehabilitation, and Mr. Manuel Lugo, Deputy Division Administrator, provided information on eligibility for DVR services and the DVR training grant. Regardless of the referral source, the DVR’s goal is to maximize employment for their consumers. Consumers are screened for eligibility based on the impact of the medical or psychological condition on the person’s life. Due to funding limitations, eligible consumers are categorized by severity of impairment through the order of selection process, with the consumers having the most severe functional limitations rated highest (category 1) served first. All other eligible consumers are placed on a waiting list for services. An individual employment plan (IEP) is developed for each consumer. If an IEP is developed for retraining, the consumer is required to apply for financial aid with the post secondary training institution. A training grant of up to $4000 per academic year from the DVR is available to assist with payment of tuition and books when the cost of attendance exceeds available financial aid. Training is not limited to a two-year program. The DVR supports the lowest cost option for post secondary training. 
   
   Approximately 25% of the population served have an IEP involving post secondary education.
   
   Mr. O’Malley clarified that currently employers and insurers are not liable for the costs of tuition, books and fees for retraining plans developed by the DVR for injured workers served by the DVR.
   
   Ms. Huntley-Cooper informed the WCAC that the proposed Wisconsin-Minnesota agreement includes collaboration with worker’s compensation mediation and claims research, with Wisconsin providing assistance with data collection. There is also a provision for a third party administrator bill review contract for the UEF. Both governors are considering the terms of the proposed agreement.
   
   Ms. Knutson provided updated information on the number of litigated cases pending that involve a constitutional challenge to the 2006 statutory amendments involving barred traumatic claims. The Department of Justice now estimates the number of pending cases at 36.
   
   Mr. O’Malley reported that the Governor’s budget bill provision that allows DWD to contract with the Department of Administration or a third party administrator to handle claims from the Work Injury Supplemental Benefit Fund has been removed. However, the domestic partner provisions allowing for payment of death benefits remains in the budget bill.
   
   Mr. O’Malley indicated that the Department was withdrawing its proposal # 15 on advice from the Department of Justice.
   
   Ms. Huntley-Cooper indicated that the updated copy of the Department proposals includes proposal 19 which was previously overlooked. The new proposal involves a new administrative rule codifying the Certification of Readiness process as it currently exists. The COR process has been running fairly smoothly for the past 1 ½ years and has resulted in a significant decrease in pending cases and hearing delays. Mr. Beiringer requested that the WCD provide a copy of the current department procedures used in the COR process. Information on the COR process will be provided at the next meeting.
   
   Mr. O’Malley reported that the WCD had received an additional public proposal from Attorney Edmundson that involves an examining physician for the insurer simultaneously sending a copy of the report to the employee and the insurer.
   
   Mr. Aiello reported that the amounts paid for barred hearing loss claims was $900,000 for fiscal year (FY) 2007 and $1.6 million for FY 2008. The number of claimants paid in FY 2007 totaled 192, and this number increased to 301 for FY 2008.
   
   
6. Department Proposals:  Mr. Beiriger indicated that Management was not comfortable with approval of Department proposal # 2 regarding referrals to the Office of the Commissioner of Insurance. Management would like additional time to consider this proposal.
   
   Mr. Beiriger provided a handout of the new, condensed Management Proposal. The counter-proposal does not include an amendment for payment of vocational rehabilitation benefits. The counter-proposal is summarized as follows:
   
   
   
   • Management proposes an increase in benefits for employees that are defined by statute as permanently totally disabled (PTD) by raising benefit rates up to a 6-year lag on an incremental basis with the inclusion of an index going forward. PTD benefits would no longer be available for injured workers who are PTD on a vocational basis. Management is willing to consider an amendment to the statutory definition of PTD.
   
   
   • Management would agree to increase the burial expense maximum to $10,000 when the employee dies as a result of the work injury.
     
   • Management would agree to a $10 increase in the maximum PPD rate for each of the next two years in exchange for elimination of payment of medical expenses for hearing aids when the employee suffers no compensable hearing loss and an amendment to Wis. Stat. §102.17(4) providing that prosthetic devices in barred traumatic claims would only be covered if the original prosthetic device was implanted before the statute of limitations ran on the claim.
     
   • Management proposes an amendment to Wis. Stat. §102.03(2) eliminating provisions in construction contracts which transfer liability back to the employer for any third party awards against a contractor or subcontractor on the project.
     
   • Management proposes to convert the current medical treatment guidelines contained in Wis. Admin. Code ch. DWD 81, to treatment parameters to be used for purposes of utilization review/preauthorization of treatment. Disputes would be resolved by the department and an administrative rule would be adopted setting forth appeal procedures. Management will be working with medical providers to draft a proposal for the next agreed bill cycle to address medical cost containment.
     
   • Management proposes that all claims for bad faith be reviewed administratively by the Department to determine if there is probable cause to proceed to hearing.
     
   • Management proposes that disability benefits be disallowed for incarcerated injured workers and illegal immigrants.
   
   
   Mr. Kent provided Labor’s response to Management’s counterproposal:
   
   
   •  He observed that limiting the scope of eligibility for PTD benefits would eliminate the “odd lot” eligibility for PTD. The department finds the facts in those cases before awarding PTD benefits. Labor cannot agree to limit PTD benefits to those injuries defined by statute.
   • Labor also has reservations on eliminating death benefits in PTD cases where the death is not directly related to the work injury.
    
   
   • Labor will not agree to link an increase in burial expense to restricting payment only in cases where the death is directly caused by the work injury. Labor based its proposal for increasing maximum burial expense on data provided by the Funeral Director’s Association which indicates the average burial base cost in 2008 was $7,328 (not including lot and headstone expense). 
     
   • Labor does not agree with eliminating hearing aid expenses as proposed by Management.
    
   
   • Labor takes the position that increasing the maximum PPD benefit rate by $10 each year is reasonable.
     
   • Management’s proposal regarding provisions in construction contracts should be dealt with by employers in their contracts with other employers or through other legislation.
   
   
   • While Labor is interested in addressing the issue of rising medical costs, Management has not offered any data to support its proposal.
    
   
   • With regard to Management’s proposal on bad faith claims, Labor is comfortable with the department’s current process of handling those claims. An administrative law judge currently has the discretion to hold a prehearing conference in a bad faith case prior to holding a formal hearing on that issue. 
     
   • Labor does not agree with elimination of disability benefits for illegal immigrants. If employers hire illegal immigrants and they are injured, employers are obligated to provide all worker’s compensation benefits to those workers. In addition, if a worker is incarcerated, he should not lose entitlement to disability benefits including permanent partial disability.
   • Labor takes the position that indexing PTD benefits makes sense. Mr. Kent suggested that Management provide data to support their proposals.
      
     

7. New Business:  None.
   
   

8. Adjournment: Discussion on all agenda items concluded and the meeting was adjourned at approximately 4:15 p.m.
   
   Future meeting dates:   May 8th (Clarion) and June 5th. All meetings are scheduled to be held at the Crowne Plaza in Madison with the exception of the May 8th meeting which is scheduled at the Clarion in Madison.