to the DWD Secretary to include in the next biennial budget. She said it will be
months before the Department makes any final decision on the following items:
- Add 2 ALJs. The Department's stated goal
is to schedule hearings, statewide, on average, within 6 months of the date the
application is ready for hearing. Hearing delays continue as a persistent problem.
Currently, the delay is approximately 9 months, the lowest it has been since 1993, but
still unacceptably high. Assuming the legislature approves the request in July 2000, the
Division intends to review the delay at that time to determine whether there is still a
need to hire one or two additional ALJs. The Division will periodically update the Council
on the budget request and the extent of hearing delays.
- Add 1 WC Dispute Resolution Specialist.
The Division remains committed to providing alternative (informal) dispute resolution
options. Paralegal ADR and ALJ settlement conferences have played a meaningful role in
stabilizing the backlog of litigated hearings despite a high level of applications.
- Upgrade information technology systems.
- Adjust certain pay grades for positions in
which staff turnover has been a problem.
Legislative Audit Bureau -
ALJs. Ms. Norman-Nunnery said the Division has not seen the report, but has been advised
informally that it will be issued soon and will not make any major recommendations
affecting the Division.
Insurance Focus Group - Medical
Reporting. Ms. Norman-Nunnery said the March 28, 2000 meeting of the insurance
focus group was well attended. She said that Division work groups are now looking at
several possible changes related to "paragraph 9" (a Department form letter that
explains injured worker's rights to PPD) and PPD worksheets.
She said that Mr. Grassl and Mr. Olson
will take the lead on behalf of insurers who want to propose amendments to the
Department's reporting requirements. Mr. Grassl said the minutes of the insurance focus
group meeting did a good job of summarizing what occurred.
Safety Commission -- Release of
Employer-Specific Injury Data. Mr. Frank Conway, Supervisor of the Division's
Research and Statistics Section, explained the 1999 Safety Report using a power-point
slide presentation and handouts. Based on a rather careful analysis of 3 years worth of
injury reporting (1997-1999) approximately 2000 employers received certificates of
recognition for good safety records; approximately 184 received notices of poor safety
records. In both cases, the leading employers in each sector were selected.
Ms. Coakley asked for information about
the trucking industry, which Mr. Conway explained. Mr. Beiriger said he liked the
industry-by-industry approach, comparing it to peer review. He said it is better than
focusing on just "high-risk" industries.
Mr. Smith said the Wisconsin State
Journal submitted a formal open-records request for the underlying data used to select the
184 employers with poor safety records. While the information does not identify any
individual worker, the Division and the Department determined that there was sufficient
legal authority to deny the request and did so. The newspaper formally asked the Attorney
General's open records expert to review the Department's denial. The Assistant Attorney
General met with Mr. Bernstein, DWD General Counsel, Mr. Smith, attorneys for the
newspaper, several reporters and several Department staff. The Assistant AG concluded that
the Department had no basis to withhold the data. He strongly recommended that the
Department release of the information which is being done.
Mr. Smith asked whether the Council
wanted to consider legislation to clarify whether or when such information should be
released. Mr. Glaser questioned whether the Council would be acting in the public interest
if it moved to protect the data. Mr. Newby said the 184 employers had to have a very bad
safety record to get on the list. He asked what purpose it really served to shield these
employers' identities. Mr. Bagin said it might impact other employers' decisions to hire
an employee from one of these 184 companies. Ms. Coakley asked what remedies the employer
had if the newspaper incorrectly reported information. She said employers deserve the same
confidentiality protection that employees have. Mr. Buchen did not think that the release
of the employer-specific data was the problem; instead he shared Ms. Coakley's concern
that a newspaper might not analyze the data with the same care that the Division staff had
done. Mr. Beiriger said gathering and analyzing the data were necessary to get the safety
problems in front of the right people so those employers could do something about it. The
Council did not take any action on the open records question.
Finally, Ms. Norman-Nunnery shared a list
of six options related to the safety project with the Council. Mr. Muelver moved that the
Council support the 2000 Safety Initiative project (option B2) including a follow up
survey by the Department to determine whether employers with poor safety records made any
changes as a result of receiving a poor performance notice. Mr. Welnak seconded the
motion. The motion passed unanimously.
Work Injury Supplemental
Benefits Fund. Ms. Norman-Nunnery said payments into the Fund were suspended
for 5 years prior to being re-instated in 1999. There is a possibility that payments into
the Fund will not pick up fast enough to cover expenditures out of the Fund. The
Department is monitoring the situation very closely and will advise the Council if a real
4. Legal Update. Mr.
Smith summarized several recent court decisions.
Heritage Mutual v. Larson - March 14,
2000 - Court of Appeals - Drinking traveling employee. The Court of Appeals upheld LIRC
paying benefits to a traveling employee who had been drinking, drove to his camper
trailer, opened the door, passed out on a bitter cold night, woke up the next morning and
suffered finger amputations from severe frostbite. A front-page Milwaukee Journal Sentinel
article suggested the Council should not allow payments in a type of situation (where
there was so much doubt about his employment status and no doubt about his inebriation).
Ms. Coakley questioned whether the Act was really intended to cover payments in this sort
of situation. Mr. Bagin and Mr. Glaser acknowledged that the decision was easy to
criticize given its unusual facts, but they both agreed that the court's basic rationale
was sound and consistent with the underlying principles of the system. They advised that
the Council do nothing in response to the decision.
- March 31, 2000 - Medical fringe benefits as part of the wage calculation. The circuit
court upheld the Department's and LIRC's position in what is seen as a "test
case" holding that the employer's contribution to general health insurance premiums
should not be included in calculating the employee's average weekly wage for worker's
for purposes of medical treatment. Mr. Smith shared a copy of a letter from
Gallagher Bassett in which they explained to an injured worker their policy of refusing to
pay "reasonable" travel for chiropractic treatment beyond the nearest
chiropractor. The situation involved a Dane County resident traveling 33 miles across the
Dane county to receive treatment rather than 6 miles to the nearest town with a
chiropractor. The insurer refused to pay more than 6 miles. The company confirmed that the
policy applies to all chiropractic treatment. Mr. Smith said that a number of Department
staff and ALJs were concerned that requiring this kind of issue to go to hearing on every
case involving chiropractic care violated the spirit of the law, if not the letter.
Mr. Glaser strongly objected to the
practice. He said the amounts may be small in each case, but they will add up. He urged
the Department to pursue the matter further. Mr. Bagin cautioned that there may be
situations where the insurer has a valid defense based on unreasonable travel distance,
but said those should be selective case-by-case decisions. He also questioned the
insurer's judgment in this particular case. Mr. Grassl said this was not an industry
practice, nor did he think other insurers would be encouraged to do so. He said the
dollars are so small compared to the risk that employees will consult with attorneys,
leading to unnecessary and expensive litigation. Mr. Smith said the Council's comments
would be very helpful as the Department reviewed the matter further.
5. Future Council Meetings.
Council members discussed ways to increase the participation rates at the fall-winter
public hearings held throughout the state to solicit legislative proposals. Suggestions
included setting aside more of each regular meeting to taking public testimony and
scheduling more meetings throughout the state during the two-year cycle rather than
concentrating them in Madison and Milwaukee.
6. Other Business.
Mr. Bagin asked for clarification of the three-day-waiting period. Specifically, he asked,
does the worker need 3 days off work due to the disability before benefits begin or do
benefits begin on the 4th day after the injury even if that is the first day of
lost time after the date of the injury? Mr. Smith said no benefits are paid for lost time
on the day of the disabling injury. He said pursuant to s. 102.43(intro) benefits begin on
the 4th calendar day after the injury even if that is the first day of lost
time after injury. And, if the worker misses time due to the injury on days 2, 4, and 8
after the injury, the worker is paid for all three days, including day 2, because there is
lost time due to disability more than 7 calendar days after the injury date. There are a
variety of scenarios under which a worker is entitled to payments involving the first,
second or third days of lost time following the injury.
Mr. Smith said the issue is likely to
come up more next year. In the past, it was too difficult to program the Department's
computers to track the 3-day waiting period on every case. Therefore, the Department did
not routinely monitor payments for compliance with that provision. Instead, when a
waiting-period problem came up, for example, as part of a wage investigation or a
litigated case, the Department staff would advise the insurers how to make proper
When a new automated system was installed
in 1997, Mr. Krohm wanted the Department to monitor the accuracy of all payments more
closely. The 3-day waiting period was one area in which he was particularly interested in
doing more education and compliance monitoring. For example, Mr. Krohm had the Division
develop a summary sheet with examples of as many possible scenarios as possible. Mr. Smith
said that the summary sheet was carefully reviewed by ALJs and other experienced staff
prior to it being posted on the Division's website.
Mr. Smith emphasized that if the Division
is successful in automating compliance monitoring, the change should be viewed as a change
in the Department's administration of the law, not the Department's interpretation of the
law. Mr. Grassl said that in the past he had discussed this issue with Margaret O'Connell,
who told him the same thing as Mr. Smith.
7. Adjourn. The