Council on Workers' Compensation
Meeting Minutes
GEF-1 Building
Madison, Wisconsin
November 19 , 2015

Members present: Mr. Beiriger, Ms. Bloomingdale , Mr. Buchen, Mr. Ginsburg, Mr. Herzog. Ms. Johnson, Mr. Kent,  Ms. Nugent, Mr. O'Malley (Acting Chair), Mr. Schwanda, and Ms. Seiler

Member Excused: Mr. Brand, Mr. Redman, and Ms. Thomas

Staff present: Mr. Aiello, Ms. Arnold, Mr. Dernbach, Ms. Endter, and Mr. Krieger

  1. Call to Order/Introductions:  Mr. O'Malley convened the Worker's Compensation Advisory Council (WCAC) meeting at approximately 10:00 a.m. in accordance with Wisconsin's open meetings law. Mr. O'Malley introduced BJ Dernbach as the new Administrator of the Worker's Compensation Division (WCD).  Council members, Workers Compensation Division(WCD) staff, and members of the audience introduced themselves.
  2. 2015 Assembly Bill 501(AB-501): Mr. O'Malley introduced Representative John Spiros from the Wisconsin State Assembly. Representative Spiros briefly discussed the key points of Assembly Bill 501. By way of background, Rep. Spiros explained the Council's last bill did not go far enough. Rep. Spiros stated the Council's last bill did not pass as it was seen as too costly for employers. In addition to being a legislator Rep. Spiros is employed in a position involving safety and worker's compensation claims for a trucking business.

    Rep. Spiros sponsored AB-501 because the legislature was not aware of the Council's progress in developing a bill for this session. He stated the intent of AB-501 was not to deconstruct the worker's compensation system but to make the system fair for both employers and employees. He indicated AB-501 incorporated some of the changes that were included in the Council's last bill, including an increase in supplemental benefits, extending the sunset for not considering part time wages while an employee was attending school for retraining, the hiring of a Department of Justice (DOJ) position for investigating and prosecuting fraud, and setting a flat fee for electronic medical records. Rep. Spiros pointed out that AB-501 also included some provisions that are contained in the Council's current bill, such as reducing the statute of limitations, and reducing benefits for employee negligence.

    Rep. Spiros explained the main points of AB-501:

    1. An employee's false statement of a physical condition on a job application would act as a bar to compensation for a work injury if the employer relied on that information in the hiring decision and there was a causal connection between the false statement and the injury. This proposal will not lead to discriminatory hiring practices or violate the ADA.
    2. If an employee brings a claim in another state and benefits are paid, those benefits will offset against any benefits paid in Wisconsin.
    3. If an employee works for a multi-state employer, and brings a claim for compensation in another state where the claim is denied for cause under that state's WC law, the claim would be denied in Wisconsin as well.
    4. An injured worker who is covered under an employer's health benefit plan will be required to treat with the providers covered by that health benefit plan in the event of a work injury. If an employer does not have a health benefit plan for its employees, the employer can choose the doctor to treat the injury but may not influence or direct the type of care provided.
    5. If an employee's negligence contributes to a work injury, benefits may be reduced in proportion to the percentage of the employee's negligence. Administrative law judges (ALJs) will decide the extent of negligence. If an employee can prove there was no negligence, the employee would be paid 100 percent of the claim.
    6. The statute of limitations would be reduced to two (2) years for traumatic injuries. Workers compensation would still be the exclusive remedy and the two (2) year statute of limitations would not apply to occupational disease claims. Currently Wisconsin has the longest statute of limitations.
    7. Mr. Buchen inquired of Rep. Spiros what was he interested in from the Council. Rep. Spiros responded that he was interested in reviewing the Council's bill and comparing it with AB-501.

      Rep. Spiros concluded by commenting the original intent of worker's compensation was to get injured workers back to work as soon as possible and not to have cases end up in litigation. His only interest is for a bill that is in the best for employers and employees alike.

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

    An email message dated November 10, 2015 was received from Ms. Maria Van Cleve, who owns, with her husband, a small wood flooring business. Her email raised three issues: the premium classifications are unfair; small employers who have a safe work place are not treated fairly for experience rating purposes; employers who provide health insurance for their employees should not have to pay twice for treatment of injured employees. Mr. Krueger stated that the first two points were referred to the Wisconsin Compensation Rating Bureau (WCRB) for a reply. Ms. Johnson said that she replied to Ms. Van Cleve's email with links to various sites she might find helpful, and invited Ms. Van Cleve to attend Council meetings. Mr. O'Malley said that department staff will draft a letter to Ms. Van Cleve addressing her third point about health insurance and insurance coverage for work-related injuries and to suggest she may attend a future Council meeting to discuss her concerns.

    Mr. Beiriger asked if the other members received the letter from the Labor and Industry Review Commission (LIRC) offering to meet with the Council to discuss their program. There was agreement that a LIRC representative will be invited to the next Council meeting to give an overview of their activities.

  4.  Caucus:  There was a motion by Ms. Bloomingdale for the Council to go into closed caucus. Mr. Buchen seconded the motion. The motion was unanimously approved. The Council went into closed caucus at approximately  10:30 a.m.

    The Council reconvened in open session at approximately 3:00 p.m.

  5. Changes to the Agreed Upon Bill: Mr. Beiriger said that the draft of the bill agreed upon at the last meeting needed some technical changes to better reflect the intent of the Council. These changes were listed on a document distributed at the meeting. The changes are as follows:

    Section 32: s. 102.175 (3) (a), on page 19, should read as follows:

    If it is established by the certified report of a physician, podiatrist, surgeon, psychologist, or chiropractor under s. 102.17(1)(d)1., a record of a hospital or sanatorium under s. 102.17(1)(d)2. or other competent evidence that an injured employee has incurred permanent disability, and that a percentage of that disability was caused by an accidental injury sustained in the course of employment with the employer against whom compensation is claimed and a percentage of that disability was caused by other factors, whether occurring before or after the accidental injury sustained in the course of employment, the employer shall be liable only for the percentage of disability that was caused by the accidental injury sustained in the course of employment.  However, if previous permanent disability is attributable to occupational exposure with the same employer, the employer is also liable for such prior permanent disability so established.

    Section 32: s. 102.175 (3) (b), page 20, line 2, add the following:

     , including occupational exposure with the same employer

    Mr. Beiriger explained that these changes are to make it clear that an employer has liability for any prior permanent disability arising out of employment with that employer.

    Section 66: s. 102.58, on page 35, line 22, add the following:

    Nothing in this section shall reduce or eliminate liability for incidental compensation under s. 102.42 (1) – (8) and s. 102.425.

    Mr. Beiriger said that the reference to subsection (9) regarding vocational rehabilitation was removed.

    Section 65: s. 102.44 (4m) (a), on, page 34, line 15, replace "periodically review" to "review every 8 years."

    Section 65: s.102.44 (4m) (a), on page 34, lines 19- 20, revise the language to," to review and recommend revision of those minimum permanent disability ratings based on typical loss of function…"

    Mr. Beiriger said that this section addresses the creation of a committee to look at permanent partial disability (PPD) ratings. Rather than having a periodic review by the committee, the review will be done every eight (8) years. The members also wanted to clarify the committee will review and recommend PPD changes based on the typical loss of function, allowing for medical advancements that may modify what the loss of function may be.

    Section 33: s. 102.18 (1) (b) 2, page 20, line 20: correct the statutory reference from 102.16 to 102.61. This change was self-explanatory.

    The Council also agreed to Mr. O'Malley's recommended changes:

    On page 7 of the draft bill: In the plain language analysis in the section for self-insured employer assessments, clarify that governmental units are currently not covered by the self-insurer's fund, are not assessed by the self-insurers fund, and do not receive payments from that fund, by substituting the following as the first sentence of the second paragraph, "The bill also clarifies that governmental employers are not covered by the self-insurer's fund."

    On page 13 of the draft bill, Section 20, s. 102.07 (3), line 16, delete the word "disability" where it appears twice, a drafting error

    On page 24 of the draft bill, Section 38, s. 102.33 (1) (c), line 7, where the drafter did not include time limits for the party to file an answer to the complaint that initiated the action, add the following sentences for lines 6 to 10, "Except as provided in par. (cm), any other defendant may serve an answer to the complaint within 20 days after the service of the complaint, which answer may, by way of counterclaim or cross complaint, ask for the review of the order or award referred to in the complaint, with the same effect as if the party defendant had commenced a separate action for the review thereof of the order or award."

    On the wage expansion proposal Mr. Beiriger stated there is a need to address this issue but it will not be on time for the current bill. He thanked Mr. Aiello for the data which showed that the Work Injury Supplemental Benefit Fund would not be a viable source of funding for the wage expansion provision. Mr. Beiriger also said that the proposal for a dispute resolution pilot program to deal with the cost of medical care was of interest to the Council but it was too late for this session and was not ready for introduction. Both sides would continue to look at directed care and its ability to resolve health cost disputes.

    Mr. Beiriger moved to modify the draft bill as described above as recommended by the Council. Ms. Bloomingdale seconded the motion. The motion passed unanimously.

    Mr. O'Malley said he would get these changes to the drafter by the end of the day. Once the bill was ready, the Council will meet to approve it, by telephone conference call if no other discussion or changes are required.

  6. Approval of Minutes: Mr. Beiriger asked for the following amendments to the minutes of the October 21, 2015, meeting: in the first full paragraph on page 6, change the word "wonton" to "wanton" and delete the entire sentence starting with "Ms. Peterson" in Labor Proposal No. 7. Mr. Beiriger moved to approve the minutes of the October 21 meeting as amended. Ms. Bloomingdale seconded the motion. The minutes as amended were unanimously approved.
  7. Letter to Mr. John Metcalf:  Mr. O'Malley circulated a letter for the Council members to sign congratulating Mr. Metcalf on his retirement and thanking him for his service to the State of Wisconsin and the Council.
  8. Future Meeting Dates:  The Next meeting was set for December 8, 2015. However, the Council may noy need to meet if the bill is finalized and no other changes need to be made. The Council set a meeting for March 6, 2916. The department will extend an invitation to LIRC and the Minnesota Workers' Compensation Division to talk about its alternative dispute resolution program.
  9. Adjournment:  There was a motion by Mr. Beiriger, seconded by Ms. Bloomingdale.. The motion was unanimously approved  and the meeting was adjourned at approximately 3:20 p.m.