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Compensation Advisory Council
Council on Worker’s Compensation
November 14, 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. Collingwood (for Mr. Schimke), Ms. Connor (for Mr. Scott),
and Ms. Vetter
Excused: Mr. Shaver
Mr. Conway, Mr.
O’Malley, Ms. Knutson, Mr. Aiello and Mr. Krueger
Adjournment: Discussion on all agenda items concluded and the
meeting was adjourned at approximately 3:30 p.m.
- Call to Order/Introductions: Ms. Huntley-Cooper convened the
Worker’s Compensation Advisory Council (WCAC) meeting via teleconference at
approximately 2:00 p.m. in accordance with Wisconsin’s open meetings law.
WCAC members, staff and members of the audience introduced themselves.
- Minutes: The minutes of the November 8, 2007 meeting were
approved without correction.
- Draft Legislative Proposal Review:
The WCAC discussed the attorney fee proposal from the Attorney Fee Discussion
Group. After a discussion on the proposals including the issue of access to
legal representation, the WCAC unanimously agreed to approve the proposed
administrative change in calculation of attorney’s fees involving the Social
Security offset and to amend §102.26(2) to increase the maximum fee from
$100 to $250 when there is no dispute as to the amount of compensation due.
Attorney David Weir explained Labor’s proposed changes to the bill draft.
Amend page 13 lines
17-17 and page 21, lines 11-13 to change the position of the phrase “and
by the department”: “The standards promulgated under sub.(2m)(g) shall
be applied by an expert and the department in rendering an opinion as to
the necessity of the treatment under this paragraph.”
Mr. O’Malley explained
that the WCD had not rejected an expert opinion from the reviewer retained
by the department. The expert is to apply the medical treatment guidelines
in rendering an opinion to resolve a necessity of treatment dispute. In
addition, the department is to follow the medical treatment guidelines in a
hearing setting. The proposed change will not affect current procedures the
WCD uses in resolving necessity of treatment disputes. The WCAC unanimously
approved this language change.
Relates to a
language change to reflect the intention of the WCAC in adopting
Management proposal #3, transferring back to the Work Injury
Supplemental Benefit Fund (WISBF) the expenses for knee or hip
replacements first implanted after the statute of limitations had run on
these barred traumatic claims. The proposed change is to §102.17(4)(c)
and (d) and page 46, lines 7-9 as follows:
treatment expense for a traumatic injury described in par. (b) becoming due
12 years after the date of injury or last payment of compensation as
described in par. (a), whichever date is latest, shall be paid by the
employer or insurer, except that payment for expense of repair, replacement,
or other treatment relating to an artificial spinal disc or a total or
partial knee or hip replacement that was not first supplied within 12 years
after the date of such a traumatic injury or last payment of compensation as
described in par. (a) shall be made as provided in par. (d).
Benefits or treatment
expense becoming due 12 years after the date of injury or death or last
payment of compensation as described in par. (a), whichever date is latest,
for an occupational disease, or for a traumatic injury described in par. (b)
causing the need for an artificial spinal disc or a total or partial knee or
hip replacement not first supplied within 12 years after the date of such a
traumatic injury or last payment of compensation, shall be paid from the
work injury supplemental benefit fund under s. 102.65 and in the manner
provided in s. 102.66.
page 46, lines 7-9:
“Occupational disease or for a traumatic injury described in s.
102.17(4)(b), other than a claim for the benefits or expense for an
artificial spinal disc or a total or partial knee or hip replacement
described in s. 102.17(4)(c), and the claim is barred solely by the statute
The WCAC discussed the
statutory changes that were effective in 2002 and their original intent, the
effect of the changes effective in 2006 and the intent regarding the current
proposal. The WCAC unanimously approved the language changes.
- The changes
regarding temporary help agencies in the bill draft are to be changed on
pages 9 and 10, s. 102.01(2)(f) should return to the original statutory
language. On page 22 – 23, add in s. 102.29(6)(a) as follows:
102.01(2)(f), for purposes of this subsection, a temporary help agency is
defined as an employer primarily engaged in the business of placing
employees with other employers.”
Also, sections 22-27 of
the bill draft on pages 23-26 should be stricken.
The WCAC unanimously
approved the language changes.
- Remove the draft
changes to s. 102.44(6) that changes the wording from “such” employment
to “that” employment.
The WCAC is concerned
that any changes in the wording may result in unintended differing legal
interpretations. The WCAC approved the language change to revert back to
current statutory language.
Mr. O’Malley reviewed
the proposed language change to s. 102.315 (10)(a)2 and (b)2 on notice of
cancellation: “…and notice of the cancellation is provided by the insurer
as required under s. 102.31(2)(a).” This change will clarify that the
carrier is to give notice of cancellation. The changes will be added to the
bill draft and highlighted for the WCAC to further review.
Mr. O’Malley reviewed
the proposed language change to 102.425 on pages 41-42 to delete “reasonable
notice” and substitute “the employer or insurer shall mail or provide
written notice within 30 days after receiving a completed bill…” This
proposed change would result in mirroring the language for other
reasonableness of fee disputes.
The WCAC discussed the
draft bill provisions on the effective date for the statutory changes
regarding payment of medical expenses in occupational hearing loss claims.
Mr. Buchen raised concerns that the current language applies only to
prospective dates of injury and that the expenses currently should not be
payable in claims with no compensable hearing loss. Attorney Weir raised
concerns that statutory amendment involves a substantive change and
therefore should not be retroactive. Mr. O’Malley explained that the Labor
and Industry Review Commission (LIRC) had issued decisions involving payment
of hearing aids with no compensable hearing loss in the past ordering
payment and denying payment in some cases. The issue of the effective date
for changes in the statute disallowing hearing aid expenses for claims with
no compensable hearing loss was tabled for the next meeting.
Mr. O’Malley indicated
he would ask the drafter to put back in language to the bill draft
concerning a change to s. 102.18(1)(bg)1, 2, and 3 allowing appeals to LIRC
for necessity of treatment disputes resolved at hearing.
Future meeting date – tentatively November 20, 2007 at 10:00 a.m. via