Council on Worker's Compensation

Meeting Minutes
Madison, Wisconsin
September 13, 2001

Members present: Mr. Bagin, Mr. Beiriger, Mr. Buchen, Ms. Coakley, Ms. Connor, Mr. Glaser, Mr. Gordon, Ms. Norman-Nunnery, Mr. Olson, Ms. Vetter

Staff present: Mr. Conway, Mr. O ' Malley, and Mr. Smith.

  1. Minutes. Ms. Norman-Nunnery convened the meeting in accordance with Wisconsin ' s open meetings law. As amended, Mr. Bagin moved adoption of the minutes of July 24, 2001 meeting; Ms. Vetter seconded the motion. The motion was unanimously approved.
  2. Mr. Victor Presentation Postponed. Ms. Norman-Nunnery said that Richard Victor, Executive Director, Worker ' s Compensation Research Institute, was unable to get a flight to Madison to lead a briefing on two WCRI papers. She distributed copies of his materials for the Council to review.
  3. "Agreed Bill". Mr. Smith reviewed about a dozen minor changes that were incorporated in the second draft of the bill, LRB 3500/P2.

    Mr. Bagin said several people had contacted him regarding the requirement in the first draft that all tape-recorded statements had to be transcribed. He said while many statements are recorded as a routine practice, few are ever used again by anyone for any purpose. Mr. Smith said that Ms. Connor had contacted him on that issue after reviewing the draft and that labor representatives agreed to a clarifying amendment. That amendment requires the tape be transcribed or copied for the employee only if the employee, his or her attorney, or another person acting as the employee's agent it.

    Mr. Glaser said several people had contacted him about the notice to the employer in the VR section. He said they were concerned that this part of the process might encourage litigation about medical work restrictions, and the litigation would significantly delay a person ' s ability to pursue retraining opportunities. Mr. Smith said the same concern was raised when the VR rule in DWD 80.49 was adopted several years ago. He said that, at that time, the Council decided the employee could seek an immediate hearing and that the Department would simply expedite the hearing. If the Department was unable to informally expedite hearings to the satisfaction of the labor members of the Council, it was understood that the Council might establish a formal standard. Mr. Smith said there have only been a few for a hearing on any issue related to the private-sector VR process in DWD 80.49, probably because there have been relatively few cases in the system over the years.

    Mr. Glaser said he was comfortable with leaving the language in the current bill as long as the Department expedited the hearings on this issue on request.

    Mr. Bagin and Mr. Glaser asked whether the provision allowing prospective review of medical treatment would be based on the date of the review or the date of the injury. Mr. Bagin said that, like the "Spencer/Honthaner ' s" issue, they had intended that it apply based on the date of the prospective review and not be limited to dates of injury after January 1, 2002. Mr. Smith said that, in his opinion, the provision was entirely procedural, not substantive. It does not create an additional substantive benefit for the employee or any additional liability for the insurer. An employee is entitled to reasonable and necessary treatment, no more, no less. That does not change on January 1, 2002. The bill simply provides another prospective process for determining whether treatment meets those standards, in addition to the tiebreaker exam in s. 102.13.

    Mr. Bagin moved that the draft LRB 3500/P2 be jacketed for introduction as a legislative bill without further changes. Mr. Glaser seconded the motion. The motion passed unanimously.

    Representative Hundtermark said there would be companion bills introduced in the Senate and Assembly with a joint hearing scheduled for 9:00 a.m. September 26, 2001.

    Ms. Norman-Nunnery said that staff and Council members agreed that Mr. Gordon Malaise, Senior LRB Staff Attorney, had done an excellent job with some difficult material on a tight timeline. She said the quality and responsiveness were very helpful in meeting deadlines facing the Council and the Legislature. She said her staff had recommended that in her role as Chair of the Council she should send a thank-you letter to his supervisor. Mr. Bagin moved that a letter be sent on behalf of the Council. Mr. Glaser seconded the motion. The motion passed unanimously.
  4. Budget review. DWD Secretary Jennifer Reinert reviewed the Governor ' s budget. She said that in the past year she had been so impressed by the work and the leadership that the Council provided. She said she was pleased that the worker's compensation system had fared so well in the budget. The budget approved the two additional ALJ positions, restored the turnover allowance, and funded the information technology needs. She said she was also glad that the Governor ' s veto message referenced the work that had been done to avoid a veto relating to chiropractic care. She said the interested parties seemed to agree that a clarifying trailer bill would remove some uncertainty about the intent of some provisions.

    Mr. Glaser said that on behalf of the labor representatives he appreciated her support for adding ALJ positions to reduce the backlog of litigated cases to six months. He also thanked Ms. Norman-Nunnery, Mr. Smith and Mr. O ' Malley for their dedication to the Council process. He said the Department provided a lot of assistance in the process.

    Mr. Bagin said that his company works in many other states and that the cordial access into the administrative process which the Division provides is a key. He said that we may not always agree with the Division on the details of administration, but we are consulted and listened to. Mr. Buchen agreed that both sides get non-partisan assistance from the Department.

    Mr. Glaser said the process is based on trust. We trust the Department to be neutral. The legislature trusts us to work on the important issues. Mr. Bagin said that the Council members have often commented that it might be difficult to start the Council system from scratch today. Ms. Reinert agreed that the long tradition of good-faith discussion is an important foundation.

    Ms. Coakley asked if there were anything that Ms. Reinert would ask of the Council. Ms. Reinert said that she had come to fully trust the Council process and would only look to members for their continued good advice and counsel.

    Mr. Buchen asked if there was any update on the safety issue. Ms. Norman-Nunnery said Mr. Dan Murray had been retained as a consultant to look at how we should proceed. He will have recommendations in November. Ms. Reinert suggested that the Council might want to visit the new Department of Commerce Secretary to discuss whether they might still play a helpful role.
  5. Constituent Letters. Ms. Norman-Nunnery asked the members to review two letters. Mr. Smith said that his correspondence with Ms. Zwolinski had not resolved her concerns and that she had requested an opportunity to discuss her concerns with the Council. The Council requested that Mr. Smith advise her that she was welcome to attend any meeting.
  6. Adjournment. Ms. Norman-Nunnery said she would circulate a calendar to determine acceptable dates for the future meetings. The Council adjourned subject to the call of the Chair.