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Compensation Advisory Council
Council on Worker’s Compensation
May 17, 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.
Shaver, Mr. Scott, Ms. Vetter
Excused: Mr. Schimke
Mr. Conway, Mr.
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 May 3, 2007 meeting were approved
- Preparation on Duty Disability Benefits (s. 40.65 Wis. Stats.):
Ms. Diane Poole from Employee Trust Funds (ETF) presented information on
duty disability benefit eligibility, benefit payments and a brief analysis
of Assembly Bill 275. Duty disability benefits are funded by contributions
from employers. The contribution rates are based on the prior claims
experience and the number of protected employees on the payroll of the
employer. On the date of injury, the employee must be a member of the class
and permanently disabled and the employee must meet one of the qualifying
criteria. There is a presumption for firefighters for heart and lung disease
and cancer. The presumption for heart and lung disease requires total
service of at least 5 years, a pre-employment medical exam that showing no
heart and lung disease at the time of hire, and minimum percentage of
firefighting job duties. Volunteers are not eligible for duty disability
benefits. Worker’s compensation benefits are offset if the benefits are paid
on or after the date of application for duty disability benefits. If
worker’s compensation benefits are paid prior to the date of application for
duty disability benefits, there is no offset. The duty disability fund is
doing well financially. Strokes do not qualify as a presumptive condition
for duty disability benefit purposes. If AB 275 passes, ETF would likely
require anyone applying for duty disability benefits under the presumption
to apply for worker’s compensation benefits. This is currently not required
because these claims are rarely paid under worker’s compensation. Since
1988, 53 employees have applied for duty disability benefits under the
presumption. Mr. Buchen mentioned this is the first time a bill has been
introduced with an effect on substantive benefits that did not proceed
through the agreed bill process. No hearing has been held to date on this
Reports: Mr. O’Malley reported on the WCD’s litigated caseload. The
WCD is currently scheduling hearings almost 12 weeks in advance. Extra staff
is involved in scheduling and the WCD is paying overtime to some staff.
There are approximately 1700 events scheduled at this point. The number of
cases currently waiting for a formal hearing to be scheduled has dropped to
3608. The median lag time for a case to be scheduled once it is ready, is
dropping as well. For new hearing applications, the average wait time will
probably be 6 to 7 months assuming stable staff and number of new
applications received. Mr. Newby indicated the target wait period is 6 to 8
months. Mr. Conway mentioned that the WCD would be drafting a letter to the
WCAC, administrative law judges and private attorneys introducing a
certification of readiness process. This will improve the WCD’s ability to
be responsive to employees and schedule hearings in a timelier manner.
Ms. Knutson reported that the Attorney Fee Discussion Group is planning to
meet on May 18th. A further report will be provided to the WCAC at the next
Mr. Conway indicated that on May 18th the WCD will be meeting via
teleconference with Mr. Erik Englund and Mr. Ralph Herrmann to further
discuss insurer loss ratios and the method used for projecting claims
Ms. Knutson indicated the WCD is discussing the possibility of facilitating
settlement days with large insurers. This practice has been used the last
couple of years by Frankenmuth Insurance with success.
Correspondence: Mr. Conway reported the WCD sent a letter to the
Senate and Assembly Labor Committees requesting that no action be taken on
AB 275 and AB 288 until the WCAC has had the opportunity to analyze and make
a recommendation on the bills.
Unfinished Business: None
Labor/Management Proposals: The WCAC requested the WCD notify
the Legislative Committee chairs that they are continuing to review AB 275.
Management response to Labor Proposals:
Management is not agreeable to Option 2 for raising permanent total
disability benefit rates up to a six-year lag and including an index on
future benefit rates. Management is concerned about the cost associated with
the proposed change in benefit rates.
The increased costs associated with litigation and settlement values are
unknown. The real claims cost is not reflected in the benefit projections.
Management is committed to addressing permanent total disability rates.
Modest increases in benefits would probably not have much of an effect on
litigation patterns. Labor stressed there is a serious problem with
permanent total disability rates for older claims.
Labor response to Management Proposals (number references the proposal
number; numbers not mentioned were not discussed):
1. Labor is not agreeable as this potentially takes away an employee’s civil
3. Labor is not agreeable. Management stressed that the change in the law
last session created unanticipated potential liability for the
insurers/employers for knee or hip replacements initially occurring after
the statute of limitations has run.
4. Labor is not agreeable to creating a presumption of evidence in hearing
5. Labor agreed to eliminate payment of medical expenses in hearing loss
cases with no practical hearing impairment.
6. Labor requested further information on how often an employer has
temporary workers from multiple temporary help agencies on a jobsite.
7. Labor is not agreeable to changing the burden of proof (i.e., requiring
evidence of retaliation) in unreasonable refusal to rehire claims.
8. Labor questioned the type of discovery in unreasonable refusal to rehire
cases that Management was contemplating. Labor emphasized that full
discovery in worker’s compensation cases is not desirable. Management
indicated this proposal was linked to number 7.
10. Labor is not agreeable to eliminating benefits from the Second Injury
Fund, indicating these employees were the most disabled.
11. Labor is not agreeable to eliminating barred hearing loss claims.
13. Labor is still considering the amendment to §102.60(6) to remedy the
unintended consequence of requiring the employer to pay both the penalty in
illegal employment of minors cases and additional compensation to the
employee beyond the three-day waiting period.
Ms. Huntley-Cooper asked the council if there was any information the
Department could provide to assist the parties with their deliberations
regarding the pending proposals. The council did not have any at
- Adjournment: Discussion on all agenda items concluded and the
meeting was adjourned at approximately 3:35 p.m.
Future meeting dates are as follows:
Thursday June 7, 2007
Wednesday, July 11, 2007
Wednesday, August 1, 2007
Thursday, September 6, 2007
Target date for agreed bill is June 1, 2007