Website - Division of Worker's Compensation
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Council on Workers' Compensation
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
- 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.
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
Rep. Spiros sponsored AB-501because 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
Rep. Spiros explained the main points of AB-501:
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
If an employee brings a claim in another state and benefits are
paid, those benefits will offset against any benefits paid in Wisconsin.
· 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
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.
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.
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
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.
O'Malley reviewed correspondence to the Council that was received since the
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.
- 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.
- 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
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
every 8 years."
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
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
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.
- 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.
- 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
- 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
- Adjournment: There was a motion by Mr. Beiriger, seconded by Ms.
Bloomingdale.. The motion was unanimously approved and the meeting was adjourned at approximately