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Worker's Compensation Advisory Council
Council on Worker’s Compensation
Crowne Plaza
Madison, Wisconsin
June 13, 2011

Members present:   Mr. Beiriger,  Mr. Buchen, Mr. Collingwood, Ms. Connor, Mr. Kent, Mr. Metcalf,  Ms. Nugent, Mr. Olson, Ms. Pehler, Mr. Schwanda and Ms. Thomas

Excused:    Ms. Bloomingdale,  Mr. Brand, Mr. Redman

Staff present:   Mr. O’Malley, Ms. Knutson, Mr. Krueger and Mr. Aiello

1. Call to Order/Introductions:  Mr. Metcalf convened the Worker’s Compensation Advisory Council (WCAC) meeting at approximately 10:30 a.m. in accordance with Wisconsin’s open meetings law.  WCAC members, staff and members of the audience introduced themselves. 
    
   
2. Minutes:  Mr. Kent moved to approve the minutes of the May 09, 2011 meeting without correction;  second by Mr. Beiriger.  The minutes were unanimously approved.
    
   
3. Correspondence:  None.
   
   
4.  Report - Proposal Updates:  Ms. Knutson explained the department modified the language in its proposal #7 in response to Labor’s concerns at the last meeting.  Specifically, the provision allowing the Department of Administration (DOA) to retain an attorney to represent the interests of the Work Injury Supplemental Benefit Fund (WISBF) has been deleted.  Mr. Beiriger requested confirmation that DOA could handle the claims.  Ms. Laura Ellingson, Worker’s Compensation Manager with DOA Bureau of State Risk Management, confirmed that DOA agreed that it could handle the claims.
   
   In response to Management’s concerns about Department Proposal #17, the WCD developed a form (WKC 1700) and it was distributed to the WCAC members.
   
   In response to a request from the WCAC, the WCD provided information on a comparison of maximum PPD and TTD rates, and PPD as a percentage of TTD for the years 2008 through 2011, and assuming the maximum PPD rate to be 50% of the maximum TTD rate as proposed by Labor.  The WCD also provided information on the number of claims that are at the maximum PPD rate for 2010, but that number does not include the number of claims where PPD was actually paid.
   
   The WCD provided information obtained from a survey of other states conducted by the Workers Compensation Research Institute (WCRI) and published in conjunction with the International Association of Industrial Accident Boards and Commissions  (IAIABC) addressing the issue of choice of doctor.
   
   The WCD provided information concerning the number of litigated claims with vocational rehabilitation listed as an issue for the years 2001 through 2010 and the number of claims with vocational rehabilitation indemnity payments reported by the insurer or self-insured employer for those same years.  Labor’s proposal concerning vocational rehabilitation benefits would apply to retraining claims from the effective date forward regardless of the date of injury.   Mr. O’Malley clarified that normally the effective date for other benefit changes is the date of injury forward; under Wis. Stat. §102.03(4), changes to vocational rehabilitation benefits are effective for all claims from the effective date of the statutory amendment forward.
   
   The WCD provided information on the projected effect of Management’s proposal to reduce the health cost database standard deviation from 1.4 to 1.0. Comparisons for a few CPT codes were included in the information.
   
   The WCD provided the summary of the survey of states on laws requiring continuation of health insurance during receipt of disability benefits.  Mr. O’Malley explained his research showed that only four states have a provision for continuation of health insurance.  He did not find any states that had statutes addressing the valuation of pension or retirement benefits lost or reduced due to disability.  Ms. Nugent indicated the Federal Medical Leave Act (FMLA) already requires continuation of health insurance coverage for 12 weeks.  
   
   With regard to the issue of creation of a statutory definition of “independent medical evaluation” (IME), Mr. O’Malley reviewed Larson's Worker’s Compensation Law treatise and there is no listing in the index for IME.  Labor’s position is the manner in which the examination is communicated to the injured worker is objectionable. 
    
5. Discussion all proposals:  Management continued with an explanation of its proposals as follows:
   
   Management Proposal #10:  Mr. Beiriger explained that Management is not opposed to increasing permanent total disability (PTD) benefits to current practical levels (i.e. a six-year lag and index forward); the difference is that Management would require a distinction that the additional benefits would be for employees that meet the definition of ''statutory" PTD only. Management is looking for a bright-line test to determine PTD, all other employees would be deemed able to return employee to work.  Mr. Kent responded that it is difficult to list all possible injuries/diseases that cause a person to become PTD; asbestosis, spinal cord and brainstem injuries are just a few examples.  Labor is satisfied with how the system currently operates.  There are only around 700 injured workers receiving PTD benefits. Management is concerned about settlements as well, not just conceded PTD and those paid per department order.  Mr. Kent responded that carriers can already challenge continued receipt of benefits.  Mr. O’Malley explained that if an interlocutory order is issued, the insurer can challenge future continued disability, except for cases where the employee meets the definition of statutory PTD.  Mr. Kent indicated that studies show only 37% of severely disabled workers find work. For Management, the issue is also labeling employees and encouraging them to be deemed PTD.  The employer should try to do everything possible to return injured workers to work.
   
   #11.  Ms. Connor explained that the current language in the statute (Wis. Stat. §102.17(4)) could be construed that medical expense payments extend the statute of limitations. Management wants to clarify the statute by adding the additional “exception” language to make the language parallel and consistent.
   
   #12, #13 and #15.  Mr. Beiriger indicated there is a problem with injured workers filing hearing applications to toll the statute of limitations. In addition, in litigated cases, parties are not informed why they have been impleaded.   Ms. Connor commented that supporting documentation may be filed, but it is not mentioned in the letter provided to the carriers. Mr. Olson indicated there have been cases where the claim is denied upfront and the carrier is required by the Department to obtain a final medical report. This may require an amendment to Wis. Stat. §102.13(2)(c) and Wis. Admin. Code §DWD 80.02.
   
   # 14.  This proposal provides that tiebreaker doctor reports obtained by the department are rebuttable and the doctors must be available for cross-examination in Labor and Industry Review Commission (LIRC) remand cases.  The proposal is in response to the Court of Appeals decision in Aurora Consolidated Healthcare vs. LIRC, 2010 Wis. App. 173.Mr. Metcalf indicated there are constitutional issues involved as well as operational issues.  Mr. Kent commented that the insurer can rebut the tiebreaker opinion with its own doctor's opinion. Mr. O’Malley noted that Wis. Admin. Code § DWD 80.22 was not cited in the text of the court decision.   Further, Wis. Stat. § 102.17 (1) (d)1 provides that contents of certified medical reports constitute prima facie evidence subject to rules and limitations the department prescribes.  Some WC agencies have medical doctors that provide opinions on cases.
   
   #16.  Mr. Beiriger indicated this proposal deals with the exclusive remedy under Wis. Stat. §102.03(2). The employer is provided with the exclusive remedy protections. The proposal encompasses typically the construction industry where indemnification agreements are common in contracts. In these cases liability for the injury is by contract transferred back to the employer; this practice is against public policy as employers are being denied the exclusive remedy protection.  Mr. Kent questioned whether the government should interfere with private contracts.  Businesses should address this issue in the marketplace.  Mr. Beiriger responded that privity of contract should not extend to violation of state law; when one party has so much power the free market does not work.
   
   
6. Adjournment:   Motion by Mr. Kent, second by Ms. Nugent that the WCAC go into closed caucus to consider all of the proposals.  The motion was unanimously approved; the WCAC went into closed caucus and the public meeting was adjourned at approximately 12:30 p.m.  
   
   Next Meeting:  July 11, 2011