Council on Workers' Compensation
Meeting Minutes
GEF-1 Building
Madison, Wisconsin
April 27, 2015


Members present: Mr. Beiriger, Ms. Bloomingdale, Mr. Brand, Mr. Buchen, Mr. Ginsburg, Ms. Johnson, Mr. Kent, Mr. Metcalf, Ms. Nugent, Mr. Redman, Mr. Schwanda Ms. Seiler, and Ms. Thomas

Staff present: Mr. Aiello, Ms. Arnold, Mr. Ezalarab, Mr. Krueger, Ms. Lake, Mr. Moreth and Mr. O'Malley

  1. Call to Order/Introductions:  Mr. Metcalf convened the Worker's Compensation Advisory Council (WCAC) meeting at approximately 10:00 a.m. in accordance with Wisconsin's open meetings law. WCAC members, staff and members of the audience introduced themselves.

  2. Approval of minutes:  Mr. Beiriger moved to approve the minutes of the March 10. 2015 meeting. Ms Bloomingdale seconded the motion. The minutes were unanimously approved without correction.

  3. Correspondence:  Mr. O'Malley reviewed correspondence to the Council received since the last meeting.

    A letter dated March 23, 2015 was received from Mr. Stephen Schneider, American Insurance Association; Mr. Mark Johnston, National Association of Mutual Insurance Companies; Mr. Jeff Junkas, Property Casualty Insurers Association of America; and Mr. Andy Franken, Wisconsin Insurance Alliance. They previously sent a letter to the Council dated December 23, 2014 proposing the adoption of a medical fee schedule with reimbursement levels based on a percentage of Medicare rates and the adoption of a pharmacy fee schedule for repackaged drugs dispensed directly by physicians to injured workers. In the current letter they wished to expand their prior proposal related to repackaged drugs based on a law that was recently adopted in Indiana that provides a medical provider may not be reimbursed for more than one (1) office visit for each repackaged drug and the maximum period during which a medical provider, that is not a pharmacy may receive reimbursement for a repackaged drugs, begins on the date of the injury and ends at the beginning of the eight day after the date of injury.

    A letter dated March 27, 2015 was received from Attorney William Sachse Jr., containing four (4) proposals. The first is to repeal s. 102.13(2)(c), Wis. Stats., and s. DWD 80.02(2)(e)4 of the Wisconsin Administrative Code which require final medical reports from treating doctors. The second proposal is to cap the cost of final medical reports to $50.00. Third, to clarify that a final medical report can include the note of an office visit, and a release to work without restrictions would be proof of no permanent disability. Fourth, Mr. Sachse urged the Council to oppose the changes to the WC program contained in the Governor's budget bill and requested this proposal be returned to the Council for its consideration as part of its agreed upon bill process.

    A letter dated April 2, 2015 was received from Ms. Holly Adams, Human Resources Director, Server Products, Inc. Ms. Adams proposed that the cost of treatment be controlled, that the minimum code ratings for permanent disability be eliminated, and that better controls be placed on repackaged medications.

    An email message from Mr. Tim Thorsen of Spine Sport dated April 4, 2015 was received that proposed better tracking of data and analytics for every work injury case in the state, to better understand the care, functional limitations, and work status of those cases; and to use qualified providers to determine time off from work and return to work restrictions, to save the cost and delay of getting a physician's signature. A qualified provider would be defined as an orthopedic specialist in physical therapy who is trained in basic ergonomics.

    A letter dated April 15, 2015 from Ms. Shannon Nienast, General Manager, Wisconsin Homes, Inc., proposed that Wisconsin adopt a fee schedule, decrease the statute of limitations from 12 years to 6 years or less, and allow Wisconsin employers to direct the medical care of injured workers.

    Mr. Scott Manley, Vice President of Government Relations, Wisconsin Manufacturers & Commerce sent a letter dated April 27, 2015 containing proposed law changes. 1.) Create a higher standard for compensability to "substantial" or "major contributing" cause in aggravations of preexisting conditions. 2.) Where a work-related injury is superimposed on a pre-existing condition the employee should be entitled to full compensation while the condition is acute and after the condition has stabilized the employee should only be compensated for permanent disability attributable to the work-injury. 3.) Reduce the statute of limitations to 3 years. 4.) Remove the minimum administrative code ratings for permanent partial disability (PPD). 5.) Use actual earnings to set the disability rates. 6.) Permanent Total Disability (PTD) benefits should cease once the individual reaches full social security retirement age. 7.) Require injured workers to sign all releases necessary for the employer and insurer to investigate the claim. 8.) Provide at least 60 days' notice of hearings, and require that medical expenses be filed 60 days before hearing. 9.) Eliminate injury claims for workers who are injured while voluntarily using their company's fitness centers. 10.) Eliminate death benefits for workers who are receiving PTD benefits when the death is not related to the injury. 11.) Deny benefits when the worker is intoxicated at the time of injury if the employer has a written drug testing program. 12.) Reduce benefits by 50 percent when an employee was violating any federal or state law at the time of injury. 13.) Deny disability benefits to workers on light duty if they are discharged for legitimate reasons and could have been discharged for the same reasons if there had been no injury; and treat employees who refuse to return to work during the healing period on light duty to be deemed to have quit. 14.) Allow employers to contest vocational rehabilitation training claims based on necessity, duration, or appropriateness of the rehabilitation plan. 15.) Eliminate the certificate of readiness process and replace it with a scheduling conference with the ALJ. 16.) Bar claims for secondary injuries resulting from purely personal risks.

  4. Legislation:  Mr. O'Malley explained there is currently a proposed bill, LRB-0624/2, being circulated, but not yet introduced in the legislature that would give employees a civil cause of action in circuit court against employers and co-employees if they are subjected to a hostile or abusive work environment. A copy of the proposed bill was distributed at the meeting. The proposed bill covers physical and mental harm. The proposed bill would create an exception to the exclusive remedy provision in s.102.03 (2), Wis. Stats. The proposed bill allows for affirmative defenses and a statute of limitations of one year after the last prohibited act. The remedies available to the employee include enjoining an employer or an employee from engaging in certain activities, removal of a person who engaged in abusive conduct from the employee's work area, reinstatement, medical expenses, back pay, front pay, damages for pain and suffering, punitive damages, compensation for emotional distress, and reasonable costs and attorney fees. The employer will be responsible to pay any award assessed against a co-employee. A self-insured employer, worker's compensation insurer and the Uninsured Employers Fund (UEF) would be reimbursed for compensation and medical expense payments made for the same incident out of the award.

  5. Budget Bill:  The members of the Council requested BJ Dernbach at an earlier meeting to provide information on how other states are organized for WC purposes and he provided a handout titled  "Workforce Programs in State Workforce Agencies."

    Mr. Dernbach went over the errata to the budget bill, which includes taking electronic recordings of hearings out of the bill; keep the current system for approving compromise agreements between DOA and OCI; give the Council authority to advise DOA; add in a budget fix for supplies and services; and to correct each instance where either "office" or "division" or both should appear. A copy of the errata was distributed at the meeting.

    A press release Guest Column: Worker's Compensation Proposal Represents Common-Sense Reform by DWD Secretary Reggie Newson and Wisconsin Insurance Commissioner Ted Nickel, and Reforming Government Worker's Compensation FAQ from the DWD Secretary's Office were distributed at the meeting.   

  6. Other Council Business:   There was no other council business

  7. Adjournment:  . Mr. Beiriger moved to go into closed caucus, and to subsequently adjourn from caucus. Ms. Bloomingdale seconded the motion. The motion was approved unanimously and the members went into caucus at 10:45 a.m.

    All members of the Council will not be available on May 28, 2015, the date of the next scheduled meeting. May 27, 2015 was set as the next meeting date, when all the members would be available. This meeting date is in lieu of the previously scheduled meeting date on May 28, 2015. At approximately 2:45 p.m., the meeting was adjourned.