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Council on Workers' Compensation
August 23, 2017
The Department of Workforce Development (DWD) provided public notice of the meeting under Wis. Stat. § 19.84.
Members present: Ms. Bloomingdale, Mr. Buchen, Mr. Dernbach (Chair), Ms. Frank, Mr. Gunderson, Ms. Johnson, Mr. Kent, Mr. Reader, Mr. Schwanda, and Mr. Tindall
Excused: Mr. Fugina, Mr. Redman, Ms. Seiler, and Ms. Thomas.
Staff Present: Mr. Aiello, Mr. Krueger, Ms. McCormick, and Mr. O'Malley.
- Call to Order/Introductions: Mr. Dernbach convened the Worker's Compensation Advisory Council (WCAC) meeting at approximately 10:00 a.m. in accordance with Wisconsin's open meetings law. Mr. Dernbach called the roll of the members. Members of the WCAC, the audience and Worker's Compensation Division (WCD) staff introduced themselves.
- Approval of the Minutes: A motion was made by Ms. Bloomingdale to approve the minutes of the August 22, 2017 meeting. Mr. Reader seconded the motion. The minutes were unanimously approved without correction.
- Correspondence: Mr. O'Malley announced no new correspondence was received since the last WCAC meeting.
- Other Business of the Council: A motion was made by Ms. Bloomingdale for the Labor and Management members to go into closed caucus. The motion was seconded by Mr. Reader. The motion passed unanimously and the members went into closed caucus at 10:05 a.m. The members returned from caucus at about 5:45 p.m.
The members representing Labor and Management distributed a hand-out of their joint proposals for the Agreed Upon Bill. A separate hand-out was distributed relating to the WCAC proposals addressing opioids. Mr. Reader presented the WCAC proposals, which were as follows:
- Permanent Partial Disability (PPD) Benefit Maximum Rates. A PPD benefit maximum rate increase of $20 per week in 2018 and $25 per week in 2019, resulting in a maximum PPD rate of $382 for injuries on or after 1/1/2018 and $407 for injuries on or after 1/1/2019. Additionally, Management and Labor members will sign a letter of understanding developed by the Department that the next Agreed Upon Bill will include shared savings with workers, including a weekly benefit increase above average, that is based on actual savings reported by the Wisconsin Compensation Rating Bureau (WCRB) that employers and insurers realize because of the implementation of a medical fee schedule. (Modified Labor Proposal #1)
- Permanent Total Disability Supplemental Benefits. Two-year bump in eligible dates and rates. Current law provides for those injured prior to 1/1/2003 to receive a supplement benefit up to a maximum rate of $669 per week. A two-year bump would expand coverage to include injuries prior to 1/1/2005 and increase the maximum supplemental benefits rate to $711 per week. (Labor Proposal #2)
- Increase Release of Unaccrued Benefits in Compromise Agreements. Increase the amount of unaccrued compensation that may be released to the injured worker without restriction in a compromise settlement pursuant to s. DWD 80.03(1)(d) from $10,000 to $50,000. (Labor Proposal #6)
- Posting of Employee Rights Under Worker's Compensation Act. Require DWD to develop a poster showing a worker's rights under the Worker's Compensation Act that employers would be required to display in the workplace. DWD will provide a model form that can be printed for display. The effective date of the posting requirement would be 1/1/2019. (Modified Labor Proposal #10)
- Loss of Hearing Measurements. Require DWD to review and report to the WCAC on loss of hearing measurements, how Wisconsin's laws compare to other states, how technology has improved, etc. to guide future decisions regarding statutory requirements related to hearing loss worker's compensation claims. (Modified Labor Proposal #14)
- Scheduled Injury Multiplier. If a worker suffers a scheduled injury that results in PPD, and the employer is unable to return the employee to work with a wage within 15% of his or her pre-injury wage, the worker will receive a 15% increase in the otherwise payable weeks of benefits.
- Medical Fee Schedule. Require DWD to develop a medical fee schedule that approximates the average negotiated price of group health in Wisconsin. In developing the fee schedule, DWD shall utilize available data sources, including surveying self-insured employers to request price data by Centers for Medicare & Medicaid Services (CMS) Current Procedural Terminology (CPT) codes. The fee schedule shall be constructed initially by applying a percentage increase to Medicare rates that would result in the fee schedule approximating the average negotiated group health price. Annually thereafter, the fee schedule shall be adjusted by an amount equal to medical inflation. The Department shall repeat the data collection and analysis in order to reset the medical fee schedule rates every ten years. Data collected by DWD under this section shall be considered proprietary information and not subject to open records requests. The fee schedule shall include a two and one-half percent (2.5%) increase above the DWD-determined average negotiated group health price to reimburse medical providers for administrative expenses associated with worker's compensation claims, unless providers bring data forward to DWD that proves the amount of uncompensated administrative expenses associated with worker's compensation claims is higher than 2.5% but no higher than 10%. The fee schedule shall be effective as of 1/1/2019. (Modified Management Proposal #1)
- Electronic Billing/Payments. Require that all providers treating worker's compensation patients utilize electronic billing and accept payments electronically by 2019. (Management Proposal #4)
- Electronic Medical Records. By 2019, require the availability of electronic medical records to people currently permitted to receive copies of medical records in worker's compensation claims. (Modified Management Proposal #5)
- PPD minimum ratings. DWD shall report to the WCAC on the progress of the review of the minimum PPD ratings in s. DWD 80.32, as required by 2015 Act 180, within three months of the bill's effective date. (Modified Management Proposal #12)
The proposals regarding the use of opioids in worker's compensation claims were presented as follows:
- Limit physician dispensing of opioids for a workplace injury to a 7-day supply per claim. Opioids dispensed by a physician beyond a 7-day supply shall be deemed to be unnecessary treatment under s. 102.16 (2m).
- The DWD shall coordinate with the Department of Safety and Professional Services (DSPS) to educate providers, and shall educate injured workers, about FDA-approved treatments and devices for chronic pain, to be used in lieu of or in combination with medication, that could be covered under the Worker's Compensation Act as a medical expense that may be reasonably required to cure and relieve from the effects of the injury. FDA-approved treatments may include, but are not limited to, physical therapy, acupuncture, trigger point injections and chiropractic care.
- If an injured worker is prescribed opioids by a treating physician, and the employer or insurer obtains an IME opinion stating opioids are not needed, if the claim is otherwise work-related, the following shall apply:
a. Any IME opinion regarding the cessation of opioid medications MUST contain all of the following:
- A discussion of FDA-approved alternative treatments or devices other than opioid medication for the treatment of the injured worker's pain, and if opining that "alternative treatments" are also unnecessary, an explanation as to why alternatives are unnecessary;
- A proposed plan of discontinuation of opioid therapy consistent with the Wisconsin Medical Examining Board Opioid Prescribing Guideline (available at: Wisconsin Medical Examining Board Opioid Prescribing Guideline – November 16, 2016);
- That if the IME opines that the injured worker has developed behaviors indicative of opioid use disorder, affirmatively offer to pay for, and assist the worker in obtaining a physician referral for addiction treatment.
- If the injured worker develops opioid use disorder, the employer or insurer shall advise the employee that currently prescribed opioids will continued to be paid by the employer or insurer until the patient is referred for treatment. It is understood that opioids may continue to be prescribed for a time as a part of the addiction treatment process.
- Educate workers regarding opioid therapies, opioid addiction, and alternative treatments by providing information within the "Worker's Compensation Rights" poster that will be required to be displayed by employers.
Mr. Reader expressed his thanks for everyone's hard work in reaching an Agreed Upon Bill for this biennium. He stated the bill was something that all of the organizations involved could be proud to support and move forward.
Ms. Bloomingdale expressed her thanks to everyone for their hard work and dedication with focus on getting the Agreed Upon Bill approved. She expressed her wishes for the Agreed Upon Bill to move forward to the legislature for approval.
Mr. Reader made a motion to adopt the proposals by the WCAC, the Department, and the Department of Health Services. Mr. Kent seconded the motion. The motion passed unanimously.
Mr. Dernbach expressed his appreciation of the time and effort put forth by the WCAC members to develop the Agreed Upon Bill.
- Adjournment A motion was made by Ms. Bloomingdale to adjourn the meeting. The motion was seconded by Mr. Reader. The motion passed unanimously. The meeting was adjourned at approximately 6:05 p.m.
The next Worker's Compensation Advisory Council meeting is scheduled for September 7, 2017, at 10:00 a.m.