Worker's Compensation Advisory Council

Council on Worker's Compensation
Clarion Hotel
Madison, Wisconsin
May 8, 2009

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

Excused:    Mr. Newby, Mr. Schwanda, Ms. Vetter 

Absent:  Mr. Olson

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 9:30 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 April 13, 2009 meeting were unanimously approved with correction of the typographical errors on pages 2 and 4.
     
  3. Public Comment: Mr. John Fales, Chief of the Medford Area Fire Department and Mr. Ron Bohn, Service Director of Taylor County Ambulance provided a handout and requested that the WCAC consider amending Wis. Stat. §102.03 to provide the same worker's compensation coverage for emergency responders as provided to members of the state legislature under Wis. Stat. §102.03(1)(g).  Their goal is to clarify that emergency responders are in the scope and course of employment from the time summoned until their duties are complete, providing coverage portal to portal.  A recent claim by a volunteer firefighter injured en route to the fire station while responding to a call was denied by the city of Medford's worker's compensation carrier.  Mr. O'Malley explained that the volunteer firefighter would likely be covered under the special errand rule, which is an exception to the general rule that employees are not covered while commuting.  The volunteer firefighter in this case has not yet filed an application for a hearing.  Mr. Fales explained that this is not a random case; denials of coverage have occurred in the past in similar circumstances.  Mr. O'Malley indicated he was not aware of any other cases with similar facts resulting in denial of benefits.  The proposal would likely result in an amendment to Wis. Stat. §102.03(1)(c)2.  Mr. Conway explained that this proposal would be added to the list of public proposals and would be addressed under the WCAC agreed bill process; it may become a Labor or Management proposal.  Mr. David Bloom, Wisconsin State Fire Chiefs' Association, Inc., informed the WCAC that most injuries suffered by volunteer firefighters en route to a fire call are paid by the insurance carrier.  Most volunteer firefighters are told by the municipalities that they are covered in the event of an accident.  

    Ms. Patricia Grillot expressed concern regarding the low rate of permanent total disability benefits for employees who have been receiving benefits for a number of years.  She also emphasized that it is difficult to retain an attorney when the only dispute is payment of medical expenses.

  4. Correspondence: None.

  5. Reports:  Ms. Knutson provided a handout on the current Certification of Readiness process.  The Certification of Readiness process has been in place since August 2007.  Applicant attorneys notify the WCD that they are ready to proceed to hearing on specific issues by filing a complete Certification of Readiness (COR) form and supporting medical and/or vocational evidence.  Applicant attorneys also certify the carrier was provided notice of the claim and has either denied the claim in full or has had at least 90 days notice of claim to investigate it.  If the COR is filed with the hearing application, the claim is not scheduled for hearing for at least 30 days to allow the carrier time to file an answer and for the carrier's attorney to file notice of legal representation.  Objections to the COR filed by the carrier are reviewed on a case by case basis.  The ready unscheduled caseload has dropped from about 5,000 to about 500 cases as of May 2009.  The not ready caseload has increased from about 1,000 to about 2,900 as of May 2009.  The WCD periodically reviews the not ready caseload for appropriate action.  The average wait time for a formal hearing has dropped from an average of well over 12 months to an average of 4 to 5 months.  

    Ms. Knutson reported on updated statistics on the health cost dispute process.  Of the 2,775 health cost disputes filed in 2008, approximately 71% were reasonableness of fee disputes, 5% were necessity of treatment disputes and the rest were requests for default orders due to non-payment by the carrier.  For reasonableness of fee disputes in 2008, over 70% of the orders favored the provider with 7% dismissed as paid in full.  The number of projected health cost disputes for 2009 will be around 4,000.  For the necessity disputes, the number of disputes per year has remained fairly steady at about 50 for the past few years.  Based on staff experience, in 80 to 90% of cases additional medical treatment fees are paid to the provider in necessity of treatment disputes.  Of the disputes filed in 2008 and 2009 (to May 1, 2009), the carrier only paid approximately 35% of the billed charges so that 65% of the billed charges were in dispute.   

    Mr. O'Malley explained the Department's new proposal #20, amending Wis. Stat. §102.04(1)(b)1. to clarify that a Wisconsin worker's compensation policy is required if an employer usually employs 3 or more employees for services performed in this state.  This proposal is in response to the recent Wisconsin Court of Appeals decision in Estate of Torres v. Morales.  In that case, an out of state employer sent two employees to Wisconsin for training.  One employee died in a motor vehicle accident.  The Court found that the employer was required to have coverage in Wisconsin because it met the definition of employer by virtue of having 3 or more employees, even though only 2 employees were providing services in Wisconsin.  The Uninsured Employers Fund would be responsible for payment of benefits and enforcement of the insurance requirement for out of state employers would be very difficult.  The WCAC unanimously approved Department proposal #20.

  6. Department Proposals:  :  Mr. Kent indicated that Labor was including the Medford Fire Department proposal as its proposal #5 and Labor will provide proposed language for a statutory amendment.  Mr. Beiriger suggested that Labor narrow the language to include the small group of employees intended to be covered.  

    Management and Labor both expressed a desire to further negotiate on proposed statutory amendments.  Mr. Kent indicated the medical providers came forward with a proposal to freeze medical costs with indexing future costs in conjunction with the Medical Consumer Price Index.  Labor is seeking closure of the permanent total disability benefit issue.  Mr. Beiriger voiced concern that the WCAC agreed bill process remains intact for the benefit of the Wisconsin Worker's Compensation system.  

    Mr. Kent, on behalf of Labor, responded to Management's updated proposal as follows:

    1. Labor would agree to increase maximum PTD benefits for old cases up to a six year lag and index benefits going forward in exchange for a medical fee schedule/medical cost reductions;
    2. Labor would agree to preclude eligibility for temporary total disability benefit for those employees incarcerated with no dependents and no Huber (work release) privileges.
    3. Labor would agree to requiring the WCD to hold prehearing conferences on all bad faith claims to identify the underlying facts for the claim.
    4. Labor would agree to an amendment eliminating payment of hearing aids in cases with no compensable hearing loss effective January 1, 2012.
    5. Labor agrees to increase the maximum permanent partial disability benefit rate $10 for each of the next two years.
    6. Labor would agree to increase PTD supplemental benefit eligibility from injuries occurring prior to January 1, 1993 to injuries occurring prior to January 1, 1998 (a five-year increase).
    7. Labor agrees to increase the maximum burial expense to $10,000.
    8. Labor is withdrawing its proposal #4 concerning vocational rehabilitation benefits. The issue will be revisited at a later time.
    9. Labor proposes to amend §102.03(1)(c)2 the second paragraph to read:  'and in the ordinary and usual way or any employee, volunteer or member of an emergency management unit under sec. 102.07(7) responding to a call for assistance from the time of the summons to the emergency to their return from the emergency.
    10. Labor accepts all of the Department proposals except #6 which may be revisited at another time, and Labor would hold on #19 pending review of draft language.

  7. New Business:  None.

  8. Adjournment: Discussion on all agenda items concluded and the meeting was adjourned at approximately 2:45 p.m.

    Future meeting dates:   June 5th, at the Crowne Plaza in Madison.