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Council on Worker's
March 22, 1999
Members present: Mr. Bagin, Mr. Beiriger,
Mr. Glaser, Mr. Muelver, Mr. Newby, Mr. Olson, Mr. Welnak, Mr. Higgins for
Staff present: Mr. Martz, Mr. Smith, Mr.
Liaison present: Ms. Sherman, State
Medical Society; Mr. Leonard, Wisconsin Chiropractic Association
1. Minutes. Mr. Vinge called the
meeting to order in compliance with Wisconsin's open meetings law. Mr.
Bagin moved approval of the minutes of the February 3, 1999 meeting as
drafted. Mr. Welnak seconded the motion. The motion passed unanimously.
2. Legislation proposed by legislators
and public. Mr. Smith summarized proposals received by the Department
or the Council related to:
- Create a definition of leased employees;
- Authorize a tort action for
defamation, libel or slander by employees against employers as an
exception to the exclusive remedy provision; 102.03(2)
- Index the $500 threshold for becoming
a covered employer from 1969 to 1999; 102.04(1)(b)2.
- Clearly cover members of volunteer
diving teams; 102.07(7); 102.475
- Set a fee schedule for worker's
compensation providers equal to HMO providers;
- Require an actual incident of injury
or prolonged employment for cumulative trauma to prevent short-term employees
from filing carpal tunnel claims with new employers;
- Authorize dentists to issue opinions
regarding the cause and extent of injuries; 102.17(1)(d)
- Require employers to pay a premium
bonus for a drug-free workplace; 102.31
- Tighten open records provisions;
- Do not extend the sunset provision on
out-of-state medical referrals 102.42(2)
- Allow tiebreaker exams on causation
issues prior to a hearing;
- Adopt AMA guidelines on permanent
- Create a presumption that TB is
work-related in certain high-risk occupations as defined by the Center
for Disease Control;
- Audit the accuracy of data bases used
in health cost disputes;
- Require insurers to report certain
information related to IMEs;
- Penalize insurers that mandate
pre-certification of treatment as a condition of payment;
- Penalize insurers that improperly
direct a worker's compensation claim to another health carrier for
- Require insurers to investigate
liability on not-reported injuries when the insurer receives a
Mr. Bagin objected to consideration of
the proposal to authorize dentists to issue opinions on the cause and
extent of disability, particularly related to TMJ. He said he had
discussed his concerns with Dr. DAngelo, the author of that proposal,
and invited him to write or make a presentation to the Council. Mr. Glaser
said he was not aware of any problem requiring legislative changes. The
Council requested that the Division explain to Rep. Vrakas that neither
labor or management members of the Council believe a change is necessary.
Mr. Glaser objected to consideration of
the proposal to offer premium reductions for drug testing. He said it was
a mandatory subject of collective bargaining under federal law and that
offering premium reductions for some employers increases premiums for
other employers. He encouraged employers to concentrate on safety in
general. Mr. Bagin said that, while he was not sure how much good it would
do, he was reluctant to abandon the idea completely because s. 102.58 is
not very effective. Mr. Beiriger said that, while he did not support the
premium reduction approach in Rep. Walkers bill (1997 AB 440), the
Council should encourage legislators and other to search for an effective
solution to the drug/alcohol problem because it is a serious problem. Ms.
Jo Le Duc from the Office of the Commissioner of Insurance said that
current premium dividend programs for safety offered employers greater
potential savings than those proposed in the bill.
Mr. Smith said the Division did not
understand the purpose behind Rep. Schneiders proposal, 1999 AB 32, to
amend the worker's compensation open records provision. It seemed to go
well beyond what was necessary to protect the confidentiality of injured employees. The Council requested Mr. Smith to discuss the proposal with
Rep. Schneider to provide the Council with a better understanding of the
problem that the legislation seeks to cure.
Mr. Leonard, Executive Director of the
Wisconsin Chiropractic Association and liaison to the Council, and Ms.
Sherman, liaison to the Council from the State Medical Society, discussed
several proposals dealing with the medical-only fee/necessity dispute
resolution process in s. 102.16(2) and (2m), Stats. Mr. Glaser said he
wanted to review the proposals further.
3. Legislative proposals from
management. Mr. Bagin explained the following management proposals:
- Simplify the average weekly wage
- Exempt employers from liability for
temporary disability payments if the employee is discharged for
misconduct; 102.43 (See Brakebush Bros., Inc. v. LIRC, 210 Wis. 2d
624, 563 N.W.2d 512 (1997).)
- Stabilize maximum rates for temporary
and permanent disability benefits at their present levels, except for
changes that would occur from the application of the statutory scheme
in s. 102.11.
- Respond to the federal/state DVR
changes so that retraining benefits under s. 102.61 would be barred if
the employer makes an offer of suitable employment as defined in
DWD 80.49(5) and (9)(c) and the employee fails to undertake a
reasonable job search.
- Compensate a non-work injury that
occurs after a work injury only if the work injury was a substantial
cause of the subsequent non-work injury. (Revise the courts
expansive view of what is substantial cause under Lange v. LIRC,
215 Wis. 2d 558, 573 N.W.2d 856 (Ct. App. 1997).
Mr. Glaser requested that the Division
provide Council members with a copy of the Lange case.
4. Legislative proposals from labor.
Mr. Glaser explained the following proposals:
- Amend s. 102.11(1) to remove the cap
on earnings in determining the benefit level.
- Amend s. 102.43(1) and any related
sections to raise the compensation from 66.67% to 80% because for most
workers the tax-free benefits dont match their pre-injury take home
- Index the permanent disability rate to
the temporary disability rate by some formula.
- Continue temporary disability payments
until there is an order suspending them; allow insurers to recover
overpayments from employees and, if unsuccessful, to recover
overpayments from the Work Injury Supplemental Benefit Fund under s.
- Create a presumption that tuberculosis
is work-related for employees in correctional facilities, health-care
facilities, homeless shelters, long-term-care facilities for the
elderly, and drug-treatment centers. Authorize employers to rebut the
presumption by providing evidence that the employee had a non-work
exposure to active TB.
- Amend DWD 80.24 relating to employers
providing employees with copies of statements.
- Amend 102.03 so that the exclusive
remedy provision does not apply when the employer is convicted under
criminal statutes in an action connected with an injury or death.
- Amend s. 102.11 so that part-time
employment is expanded to 40 hours for wage purposes unless the employee
restricts his or her availability on the labor market.
- When an employee is hurt on a part-time
job and has one or more jobs at the time of injury, set the wage based
on all jobs held at the time of injury. The excess premium due
carriers for the increased payment should be part of the general rate
and not assessed against either employer.
5. Adjournment. The Council adjourned to April 19, 1999
at 10:00 a.m. in Madison