Website - Division of Worker's Compensation
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Compensation Advisory Council
Council on Worker’s Compensation
GEF-I, 201 E. Washington Ave.
October 10, 2011
Members present: Ms. Bloomingdale, Mr. Brand, Mr. Buchen,
Mr. Kent, Mr. Metcalf, Ms. Nugent, Mr. Olson, Ms. Pehler, Mr. Schwanda, and Ms.
Excused: Mr. Beiriger, Mr. Collingwood, Ms. Connor and
Staff present: Mr. O’Malley, Ms. Knutson and Mr.
- Call to Order/Introductions: Mr. Metcalf convened the Worker’s
Compensation Advisory Council (WCAC) meeting at approximately 9:20 a.m. in
accordance with Wisconsin’s open meetings law. WCAC members, staff and
members of the audience introduced themselves.
- Approval of Minutes: : Mr. Brand moved to approve the minutes
of the September 12, 2011; second by Mr. Kent. The minutes were unanimously
- Correspondence: Mr. O’Malley reported correspondence was
received from the International Association of Industrial Accident Boards
and Commissions (IAIABC) and the American College of Occupational and
Environmental Medicine (ACOEM) expressing concerns regarding the growing use
of opiods to treat worker’s compensation injuries. The IAIABC is sponsoring
a webinar on this topic on November 2nd and WCD staff will participate in
- Report - Proposal Updates: None.
- Discussion of all proposals:
Mr. Kent explained the additional language of Labor’s proposal to amend
Wis. Stat. §102.42(2) on choice of practitioner. The additional language
clarifies that selection of the treating practitioner within the group
health care/plan coverage is at the employee’s selection. However, if the
employee needs treatment from a specialist, the treating physician can refer
the employee outside the group. Ms. Nugent questioned if the proposal would
eliminate occupational health clinics? Mr. Kent explained that if an
employer has a group health plan in place, the employee has a right to
select a treating practitioner within that plan for the first 60 days. Ms.
Nugent commented that some employees elect not to take the employer’s group
health insurance because they have coverage with their spouse’s insurance
and the plans may not match up. In addition, good specialists may be
eliminated due to restrictions in the group health plans. Mr. Kent
responded that employers may not have group health plans; however, if the
employer has a plan in place, the employee must treat with a doctor in the
plan. Most worker’s compensation attorneys recommend that employees
continue to treat with practitioners that are part of the group health
plan. The provider the employee normally sees can treat the employee for
the worker’s compensation injury. Ms. Pehler questioned the situation in
which an employee terminates his/her employment and the employee opts not to
continue their group health coverage through COBRA. Mr. Kent responded that
situation would result in an employee having free choice of a treating
doctor. The proposed statutory amendment will help employers who already
have group health plans in place; it will not cover every circumstance. The
employee would need to be covered by an employer plan such as Blue Cross,
Compcare, Unity, etc.; as long as the employer plan is in place at the time
the employee seeks treatment. The employee would likely continue treating
with his/her family doctor, except if he/she needed treatment from a
specialist. This provision would give an employer the opportunity to
negotiate with providers. Ms. Nugent questioned how urgent care treatment
would be covered. Mr. Kent responded that the employee would see treatment
from the urgent care clinic that is part of the employer’s group health
plan. The employee would need to seek treatment from a provider within the
group plan. Mr. Buchen responded that Management’s primary objective is to
negotiate better rates for worker’s compensation coverage. This proposal
does not seem to meet that objective. Mr. Kent replied that employers could
approach the health insurance companies to propose that an additional rider
be offered to cover workplace injuries. Mr. Brand indicated the proposal
would be difficult for worker’s compensation insurers to administer because
every employer has a different group health care plan. Ms. Nugent commented
that about 25% of employees do not have a primary doctor.
Motion by Mr. Brand, second by Mr. Kent that Management and Labor go into
closed caucus; motion unanimously carried.
Upon return from caucus, Mr. Kent provided a summary of the tentative
- The Department proposals previously agreed to as indicated in the
summary provided by the Department.
- Increase the maximum PPD benefit rate $10 in 2012 and another $10
- The standard deviation for resolving reasonableness of fee
disputes will be reduced to 1.2. The WCAC will establish an audit committee
to study the databases. The audit committee will consist of one
representative from Labor, one representative from Management, one
Department representative and one Medical Liaison. The audit committee
will decide the scope of the audit. The audit must commence within six
months from the date of enactment of the law. If the audit does not
commence within that time, the standard deviation will be increased to 1.3
and the maximum PPD benefit rate will only be increased $5 in 2013.
- The Department will establish a committee to study funding for
permanent total disability benefit (PTD) future increases. The agreed bill
will not contain any increases in supplemental benefits.
- Eligibility for compensation for disfigurement will be limited to
employees that sustain an actual wage loss. Labor will provide draft
language to the WCD staff.
- The Department will have the authority to hold a formal hearing in a
dispute over eligibility for vocational retraining when the worker is
certified by DVR for a retraining program. In addition, wages earned by an
employee while attending a formal training program will not be offset
against temporary disability benefits payable during that time.
- Labor has agreed to Management proposals # 11 (amending §102.17(4)
to clarify that the payment of medical treatment or burial expenses does not
extend the statute of limitations for occupational disease injuries) and #15
(final medical reports will not be required in cases involving uncontested
denials of indemnity).
Mr. Brand questioned the summary of the agreement involving vocational retraining claims. Management thought they had agreed to Labor proposal #3 concerning payment of retraining costs (i.e. tuition, fees and books). Management did not agree to Labor proposal #11 involving prospective orders for vocational retraining benefits; they agreed to Labor proposal #3 and were open to discussing Labor proposal #10 (eliminating the offset of wages earned while in retraining against TTD benefits).
Mr. Leonard asked if the state would agree to sue on a provider’s behalf if,
after the audit is complete, Ingenix is found not be in compliance. Mr.
O’Malley responded that the Ingenix database no longer exists; the certified
database is now under Fair Health. Further the state would not have
standing to sue. A provider would need to file suit if they are seeking
damages. If it was found that a database was not in compliance with
statutory and administrative rule requirements, the Department could
decertify the database.
Mr. Metcalf inquired whether the WCAC was authorizing the Department to
study the entire health cost dispute resolution process. Mr. Buchen
responded the WCAC would consider such a study after the audit of the
certified databases is complete.
The WCAC unanimously agreed to caucus briefly. Upon return from caucus, Mr.
Kent asked Management to explain its opposition to Labor #11, as there is no
cost component to the amendment and it would enhance return to work of
Mr. Brand indicated that Management could not agree to Labor #11 without
further discussion among the Management members of the WCAC. Mr. Kent
questioned how many cases per year would involve prospective orders for
retraining. Ms. Knutson responded that the number of cases per year would
likely not exceed twenty. Mr. Tom Flannagan indicated the injured worker
would only seek a prospective order once an individual plan for employment
(IPE) had been developed by DVR or a private rehabilitation counselor.
Currently in most cases there is a dispute concerning the plan itself or
there are causation issues with respect to the injury. The employee is
unable to attend school without a determination of liability for the
retraining. Mr. Brand indicated the WCAC should further consider this issue
at another meeting.
Mr. David Weir will draft a short memorandum addressing Labor proposal #11
and send it to Mr. Metcalf to distribute to the WCAC.
Labor and Management confirmed they have agreed to Labor proposals #3 and
#10 and Management is considering Labor proposal #11.
- Adjournment: Motion by Mr. Kent, second by Mr. Brand to
adjourn. The motion carried unanimously and the meeting was adjourned at
approximately 4:15 p.m.
Next Meeting: October 17, 2011 at 9:00 a.m.