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Worker's Compensation Advisory Council
Council on Worker’s Compensation
Meeting Minutes
Madison, Wisconsin
November 8, 2007

 

Members present:   Mr. Beiriger, Mr. Brand, Mr. Buchen, Mr. Furley, Ms. Huntley-Cooper, Mr. Kent, Mr. Newby, Mr. Olson, Mr. Schimke, Mr. Scott, and Ms. Vetter

Excused:  Ms. Bean, Mr. Shaver, and Mr. Redman 

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

1. Call to Order/Introductions: Ms. Huntley-Cooper convened the Worker’s Compensation Advisory Council (WCAC) meeting at approximately 10:00 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 September 24, 2007 meeting were approved with a correction on page 2 (the reference to 102.29(9) should be 102.29(6)).
    
3. Reports - Certificate of Readiness Update: Mr. O’Malley reported that as of the end of October, 4800 applications for hearing had been filed this year. The WCD is predicting less than 6000 applications for hearing will be filed this year. Ms. Knutson indicated that of the 460 applications for hearing received in August 2007, as of November 1, about 15 cases were scheduled for hearing and 48 were ready for hearing and waiting to be scheduled. The number of cases ready for hearing continues to decline along with the average wait time for all ready cases, which is now approximately six months. ALJ Thurow continues to work on the settlement conference pilot project and has been successful in mediating settlements in about 94% of cases scheduled.
   
   Ms. Huntley-Cooper relayed that the Secretary’s Office is pleased with the progress the WCD has made in reducing the wait time for cases that are ready for hearing. There is no plan at this time to make additional changes in the scheduling process. Mr. Newby requested that Ms. Huntley-Cooper notify the WCAC in the event there was movement in the direction of implementing any additional changes.
    
4. Draft Legislative Proposal Review: The WCAC indicated that more time was needed to review the bill draft. The goal is to have the bill introduced as a companion bill in both houses by the end of November as there is a floor period from December 11th through the 13th. The WCAC agreed to have a conference call on November 14th to further review the bill draft before it is sent to the drafter for final corrections. The Attorney Fee subcommittee recommendations to the WCAC for changes to the statute and department policy were not incorporated into the Labor or Management proposals. Mr. O’Malley explained there were three recommendations from the subcommittee. The first involved an administrative change in the way the WCD calculates attorney’s fees in cases with a Social Security offset. The second recommendation involved increasing the minimum attorney’s fee from $100 to $250. The third recommendation involved increasing the attorney’s fee from 20% to 33% for bad faith, delayed payment, safety violation, and unreasonable refusal to rehire claims.
   
   Mr. Newby indicated that injured worker access to attorney representation is an issue for Labor. Mr. Buchen indicated Management agreed to the proposed change in calculation of attorney’s fees in cases of a Social Security offset. Attorney John Neal served on the subcommittee and he further explained the three recommendations. Ms. Knutson relayed concern that attorneys would claim the higher attorney’s fee (33%) when those claims were merely part of a global settlement. The WCD would take the position that the 33% attorney’s fee would only apply when there was a separate settlement involving those claims or benefits for those claims were awarded following hearing. Attorney John Neal agreed that the 33% attorney fee would only apply to those specific claims at hearing or in a limited compromise to avoid mischief.
   
   Mr. Kent noted that the president of the Wisconsin State Bar wrote a letter to the WCAC expressing concern with the current attorney’s fee structure. The WCD will provide the State Bar letter along with the other materials from the Attorney Fee subcommittee to the WCAC members prior to the scheduled teleconference. The attorney’s fee proposal was then tabled. Mr. O’Malley indicated that the administrative change to calculating attorney’s fees (when a Social Security offset was involved) would require training of WCD staff and the goal would be to have staff trained by the end of the year.
   
   Mr. O’Malley reviewed sections of the bill draft with the WCAC. Temporary help agencies were redefined in the amended statutes to expand the exclusive remedy to temporary help agencies. Further amendments to Wis. Stat. §§102.29 (6) through (10) were included by the drafter for consistency and maintaining the status quo where exclusive remedy is raised as a defense in tort cases. Mr. O’Malley noted that the creation of Wis. Stat. §102.29 (10) did not go through the WCAC agreed bill process.
   
   Proposed changes to Wis. Stat. §102.16 were to include applicability of the medical treatment guidelines in the hearing process.
   
   The drafter created four separate paragraphs to incorporate the changes in Wis. Stat. §102.17(4) with regard to payment of prosthetics (including knee and hip replacements) in barred traumatic claims. These proposed draft amendments will be further reviewed and suggested language will be forwarded to the drafter. The drafter also amended Wis. Stat. §102.66 with regard to payment by the Work Injury Supplemental Benefit Fund for barred traumatic claims.
   
   The draft changes pertaining to professional employer organizations (PEOs) were reviewed and the WCD has requested further language changes regarding notice provisions when policies are cancelled.
   
   The WCD will request that the drafter change the proposed language allowing a reasonable time to challenge the reasonableness of a pharmacy charge to 30 days to be consistent with other reasonableness of fee disputes.
   
   The WCAC discussed the changes the drafter made replacing “such” with “that” in various sections. The WCAC is concerned that this type of language updating does not change current statutory intent or interpretation.
    
5. Correspondence: Mr. Conway reviewed the recent correspondence from Mr. Chuck Carr and the Department’s response. Mr. Carr expressed concerns with the WCAC unanimous agreed bill process. Mr. Beiriger explained that it was important for the agreed bill process not to be subject to political changes.
    
6. New Business: No new business was discussed.
    
7. Unfinished Business: Mr. Newby reported he requested that the WCD research the savings that have occurred as a result of changing the maximum fee for medical expenses – reducing the standard deviation from 1.5 to 1.4. Mr. Aiello explained that the WCD cannot run a query against the database; a programmer will need to perform the calculations. The calculation will be run against the certified databases. Mr. Conway explained that it will be difficult to calculate total savings because the standard deviation changes – increases each six months with billed charges.
   
   Mr. Kent expressed concern that the agreed bill still does not provide an adequate level of benefits to injured workers receiving permanent total disability (PTD) benefits. Mr. Kent invited comments from the audience. Ms. Patricia Grillot explained her financial situation as an injured worker receiving permanent total disability benefits for over 20 years. She indicated that the level of benefits provided is inadequate and inappropriate and as a consequence, injured workers receiving PTD benefits were not treated fairly, equitably or respectfully. Mr. Newby responded that increasing benefits for injured workers receiving PTD benefits over an extended period of time remains a top issue for Labor.
    
8. Adjournment: Discussion on all agenda items concluded and the meeting was adjourned at approximately 12:30 p.m. 
   
   Future meeting dates are to be announced.