Council on Workers' Compensation
Meeting Minutes
GEF-1 Building
Madison, Wisconsin
June 13, 2017


The Department of Workforce Development provided public notice of this meeting under Wis. Stat.§19.84

Members present :  Ms. Bloomingdale (via telephone) , Mr. Buchen,  Mr. Dernbach(Chair),  Ms Frank, Mr. Fugina, Mr. Gunderson,   Mr. Kent, Mr. Reader,   Mr. Reader: Mr. Redman: Mr. Schwanda: Ms. Seiler; Ms. Thomas , and Mr.  Tindall 

Member Excused:     Ms. Johnson,

Staff present:  Mr. Aiello, Ms. Brown, Ms. Crumble, Mr. Evenson,  Mr. Krueger,  Ms. McCormick, Mr. Moreth, and Mr. O'Malley

  1. Call to Order/Introductions:  Mr. Dernbach convened the Worker's Compensation Advisory Council(WCAC) meeting at approximately 10:05 a.m. in accordance with Wisconsin's open Meetings law. Mr. Dernbach called the roll of members. Members of the WCAC, the audience and Worker's Compensation Division staff introduced themselves.

  2. Approval of minutes: Mr. Kent had one correction to the minutes of the May 9, 2017 meeting to reflect accurately Labor Proposal 11. Under this proposal, the employer would pay the employer's share of the health insurance premium and the employee would continue to be responsible for whatever his or her contribution for the cost of the health insurance would have been but for the injury so that coverage

    Mr. Reader made a motion to approve the minutes, Mr. Kent seconded the motion, and the minutes were unanimously approved as corrected.

  3. WC Opioid Regulation Discussion:  Mary Jo Capodice, DO, Medical Director of Occupational Medicine at Aurora Health Care, and Michael McNett, MD, Medical Director for Chronic Pain at Aurora Health Care, gave a presentation on Opioid related to pain management. Their verbal report was accompanied by a PowerPoint presentation. Dr. McNett began by discussing how the medical field generally felt that opioids were bad, caused addiction, and should only be used for severe acute pain and cancer pain. This view changed in 1996 with the introduction of OxyContin ©, which claimed to be non-addictive, and the recommendation by the American Pain Society to add pain as a vital sign. However, according to the CDC, "From 1999 to 2013, the amount of prescription painkillers prescribed and sold in the U.S. nearly quadrupled, yet there has not been an overall change in the amount of pain that Americans report."

    In 2010, more deaths occurred in the U.S. from prescription opioid overdoses than from motor vehicle accidents. In Wisconsin, overdose from opioids is the second most common cause of accidental death after falls; the overall opioid death rate is 10.7 out of 100,000. Illicit use of opioids in Wisconsin is 5.4% in the 12 to 17 age group, 8.8% in the 18 to 25 age group, and 3.4% for those over 25 years old. In chronic pain patients, studies have shown the use of opioids for more than two months or in higher doses is not beneficial and may worsen pain and increase the risk of overdose.

    Wisconsin is one of the leading states in the country as far as addressing the opioid epidemic because there is no other state in which the regulatory, the law enforcement, legislative, and the medical communities have all come together to design a response. The basic strategy is to stop creating addiction and treat those already addicted. For example, physicians and physician assistants must complete two hours of Continuing Medical Education specifically explaining the Medical Examining Board Opioid Prescribing Guidelines in order to renew their licenses. Prescribing information must be reported in the Prescription Drug Monitoring Program (PDMP) within one day.

    Dr. Capodice and Dr. McNett had no specific recommendations for statutory change relating to opioids in the worker's compensation system but proposed further study. They suggested data should be collected that records the duration and dosing of opioid prescriptions in worker's compensation patients, the incidence of addiction after WC patients receive opioids, and the percentage of WC patients that receive opioids for longer than three months that are getting urine drug screenings.

    Lynn Steffes, PT, DPT, from the Wisconsin Physical Therapy Association, gave a brief presentation on the benefits of early access to physical therapy treatments instead of opioids or, at least, at the same time. Her comments were accompanied by a PowerPoint presentation. Early treatment by a physical therapist is associated with reduced risk of subsequent surgery, injections, physical visits, opioid use and advanced imaging. Total health care costs for patients receiving physical therapy in the early stage of care was about $2,700.00 less. In Wisconsin, physical therapists have unrestricted direct access to provide treatment for musculoskeletal injuries. This means a patient can see a physical therapist without a doctor's referral except in worker's compensation cases where a referral is required to receive treatment. A physical therapist can also easily screen for fractures in Wisconsin as they are licensed to order plain film x-rays.

  4. Correspondence:  Mr. O'Malley reported the department received no correspondence since the last meeting.
  5. Department Proposals: Mr. O'Malley discussed four additional proposals from the Department.

    Department Proposal No. 6 is for an amendment to create a new subdivision in s. 102.17(1)(a)5., Wis. Stats., to require the Division of Hearings and Appeals (DHA) to follow administrative rules promulgated by the Worker's Compensation Division (WCD), and limits DHA to promulgating its own rules of procedure. While administrative rules primarily related to worker's compensation adjudicative functions contained in ch. DWD 80 will be transferred to the DHA, there remain several administrative rules that are not primarily related to adjudicative functions that also apply to adjudicated cases. The administrative rules that apply to both adjudicative and non-adjudicative functions must be consistently applied for the effective administration of the worker's compensation system.

    Department Proposal No. 7 is for an amendment to s. 102.16(1)(b), Wis. Stats., to give statutory authority for WCD staff to conduct alternative dispute resolution (ADR) activities in cases involving employees appearing pro se where hearing applications were filed for the purpose of resolving cases without the need for formal hearings. Dispute Resolution Specialists within the WCD have been doing this for about 20 years with a 67 to 68 percent success rate. It is estimated that 5 to 7 percent of hearing applications filed are by pro se applicants.

    Department Proposal No. 8 is for an amendment to s. 102.17(1)(c), Wis. Stats, that would transfer the statutory authority from the WCD to DHA for the process to allow persons who are not attorneys licensed to practice law in Wisconsin to represent parties at worker's compensation hearings. Currently the WCD maintains a list of approximately 40 individuals who are licensed to appear.

    Department Proposal No. 9 is for an amendment to s. 102.18(1)(bp), Wis. Stats., that would authorize the WCD, not DHA, to define by rule the actions that demonstrate malice or bad faith. Current law provides that DHA may, by rule, define actions that demonstrate malice or bad faith. The actions that constitute malice or bad faith are contained in s. DWD 80.70 of the Wisconsin Administrative Code. Section DWD 80.70 provides that claims for malice or bad faith are penalties that may be imposed on an employer for unreasonably refusing or failing to report an alleged injury to its insurance carrier, or on an employer or insurance carrier who, without credible evidence which demonstrates that payment is fairly debatable, unreasonably fails to make timely payment of compensation or medical expense. The definition of bad faith is a substantive matter and is best determined by the Worker's Compensation Advisory Council (WCAC) and the WCD. The proposed amendment will not change the requirement for DHA to conduct hearings on claims for malice or bad faith.

  6. Labor and Management Proposals: Nothing new to propose at this time. The Wisconsin Compensation Rating Bureau (WCRB) is working on an informational request as to the cost to implement the proposed changes.
  7. Other Business of the Council:  Mr. Redman's term on the WCAC as a member representing Labor expires in 2017. Mr. Dernbach requested that resumes for this appointment be submitted by the end of July. Mr. Redman will remain in the position until an appointment for the new term is made.

    A public hearing was held on May 15, 2017, for 2017 Assembly Bill 308 (AB-308) relating to the composition of the WCAC.

    2017 Assembly Bill 25 (AB-25) regarding child labor permits passed the Wisconsin State Assembly and Senate. It has not yet been sent to the Governor for signature.

  8. Adjournment:.  A Motion was made by Mr. Redman to adjourn the meeting and for the Labor and Management members to go into closed caucus. The motion was seconded  by Mr. Reader. The motion passed unanimously. There meeting was adjourned at approximately 12:10 p.m.

    The next Worker's Compensation Advisory council meeting will be held on Tuesday, June 20, 2017 in Room D203 in the Department of Children and Families in GEF-1