Department of Workforce Development

Council on Worker's Compensation
Meeting Minutes
April 19, 1999

Members present: Mr. Bagin, Mr. Beiriger, Mr. Buchen, Ms. Coakley, Mr. Glaser, Mr. Gleichert, Mr. Grassl, Mr. Muelver, Mr. Newby, Ms. Norman-Nunnery, Mr. Olson, Mr. Vetter, Mr. Welnak.

Staff present: Mr. Smith, Mr. Vinge.

Liaison present: Mr. Leonard, Wisconsin Chiropractic Association

1. Minutes. Ms. Norman-Nunnery called the meeting to order in compliance with Wisconsin's open meetings law. Mr. Vinge said that on page 1, there was a typo in the eighth proposal; the word should read “insurers” not “employers.” As amended to accomplish Mr. Vinge’s correction, Mr. Muelver moved approval of the minutes of the March 22, 1999 meeting as drafted. Mr. Welnak seconded the motion. The motion passed unanimously.

2. Secretary Stewart’s introduction of new administrator. Secretary Stewart introduced Ms. Judy Norman-Nunnery as the Administrator of the Worker's Compensation Division. Ms. Norman-Nunnery replaced Mr. Gates who recently resigned from state service. Ms. Norman-Nunnery previously served for more than a decade as Administrator of the Division of Vocational Rehabilitation and more recently, as a Special Assistant to the Secretary. Secretary Stewart said that Ms. Norman-Nunnery’s background in the vocational rehabilitation and her outstanding work on the Department’s Quality of Worklife Initiative will be of particular value in her new assignment. Ms. Norman-Nunnery said she was looking forward to working closely with the Division staff, the Council and other stakeholders in the system.

3. Medical Records Privacy. Mr. Smith said that, as requested by the Council, he met with Rep. Schnieder regarding AB 32 relating to limiting access to worker's compensation records. He said that Rep. Schneider agreed not to pursue his proposal because current law was adequate to deal with the problem that concerned him.

Mr. Smith also discussed pending federal legislation that would require patient consent for the release of records, including worker's compensation records. He said that under current federal law, Congress was required to pass legislation by August 1999 with the regulations taking effect during the year 2000. As currently being discussed, the federal proposals would seem to supercede worker's compensation statutes such as s. 102.13, Wis. Stats., which provide for the release of all records reasonably related to a claim once there is an allegation of a work injury, with or without a release. Under the proposed federal law, a signed release would be required in all cases.

Mr. Glaser doubted that the legislation would change much because employe releases, while not required, are so common. Mr. Bagin and Mr. Grassl said releases are not common in uncontested cases. In the overwhelming majority of cases, they said that the first time employers and insurers hear about claims is when the medical bills and reports are submitted by providers. Mr. Grassl also said that, if enacted, there might be problems for insurers in meeting the 14-day-prompt-payment standard. Mr. Gleichert also expressed concern that the process would be come more bureaucratic. The Council recommended that the Department take no action in support or opposition to the proposals at this time.

4. Department’s legislative proposals. The Council gave preliminary approval to the following proposals:

• 102.01(2)(b). Repeal the provision authorizing the Deputy to conduct hearings.
• 102.05(1). In the phrase, “any calendar quarter in a calendar year,” substitute the word “every” for “any.”
• 102.18(3). In the phrase, “is not timely filed unless the petition shows probable good cause,” substitute the word “petitioner” for “petition.”
• 102.87(9). Change the word “insured” to “uninsured.”
• 15.227(4) and (11). Designate the Department Secretary rather than LIRC as the appointing authority for the Council on Worker’s Compensation and the Self-Insurance Council.

The Department withdrew proposals to amend:

• 102.04(1)(e) et al., relating to no-employe contractors.
• 102.65(3) relating to the Work Injury Supplemental Benefits Fund.

The Council tabled a proposal to amend 102.28(2)(a) relating to the degree of common ownership required for two employers to insure under the same policy.

The Council requested more information on proposals to amend:

• 102.43(2) relating to the proper treatment of wages lost during the 3-day waiting period when calculating TPD benefits. The Department will provide examples.
• 102.82(2) relating to doubling the penalties for employers who are multiple offenders in being uninsured within a 3-year period. The Department will provide additional documentation on the nature and scope of the problem.

5. Legislation proposed by legislators and public. The Council again reviewed the proposals submitted by legislators to give the Department and, if necessary, individual legislators some preliminary feedback. While no final decisions were made, a summary of the Council’s most recent discussion of these proposals follows:

• Volunteer diving teams; 102.07(7); 102.475. Draft some “comfort” legislation to more clearly cover them as employes. Rep. Meyer et al. Rationale: while they are probably covered as employes under current law, the ambiguity creates problems for law enforcement in some jurisdictions.
• Dentists; 102.17(1)(d). Do not include a proposal to authorize dentists to issue opinions on the cause and extent of disability.  Rep. Vrakas. Rationale: the current system seems to work well for injured workers and their employers; none of them has requested this change.
• Drug-free workplace; 102.31. Do not include a proposal to require insurers to offer a premium for a drug-free workplace. Rep. Walker. Rationale: the Council supports the Wisconsin Compensation Rating Bureau’s position that premiums should be based on experience rather than public policy goals, and premium reductions for one employer mean premium increases for others.
• Open records; 102.33. Do not include. Rep. Schneider. Rationale: Rep. Schneider has agreed not to pursue AB 32.
• Out-of-state medical referrals; 102.42(2). Sen. Rude. Study the proposal further. Rationale: This will be reviewed more carefully when the Council debates the extension of sunset provisions in Chap. 102.

6. Proposals from other stakeholders. Mr. Glaser requested that the Council consider
Mr. Leonard’s proposal to audit the databases used to determine reasonable fees under s. 102.16(2), Stats. Mr. Smith recommended that the Department meet with Mr. Leonard and representatives of the State Medical Society to determine the scope of the audit request. Mr. Vinge said the Department would consider contracting for outside auditors within the current budget if the request seemed appropriate and affordable. Ms. Norman-Nunnery said the Department would report back to the Council after meeting with provider representatives to define the scope of the proposed audit and reviewing available resources.

7. Summary of correspondence. Ms. Norman-Nunnery reviewed correspondence from Representative Wood asking the Council to address the 6- to 9-month delays in hearings. Mr. Glaser asked the Department to provide some statistics on the trends relating to the backlog prior to the next Council meeting.

Ms. Norman-Nunnery also reviewed three legislative proposals from Attorney John Edmonson relating to:

• 102.42(2) – Authorize an injured worker choice of providers in the state of injury and residence.
• New – Authorize a 7% interest credit on benefits that an administrative law judge determines by order, after hearing, have accrued. (It is not clear whether the accrual date would be the oldest date of accrual or the date the application for hearing was filed or some other date).
• 102.26(3)(a) – Delete the phrase “in person” and substitute a phrase broad enough to clearly encompass delivery by mail.

Finally, she reviewed a request from Mr. Bruce McCulloch requesting the law be amended to authorize payment for hearing aids prior to having a date of injury under current law.

Mr.Vinge reviewed his correspondence with Ms. Mary Machmueller requesting information related to transportation issues in which he suggested that Ms. Coakley, among others, might be able to help her.

8. Adjournment. The Council adjourned until 10:00 a.m., Monday, May 24, 1999. (Note: This meeting will be primarily for purposes of caucusing on proposed legislation.)