Council on Workers' Compensation
Meeting Minutes
GEF-1 Building
Madison, Wisconsin
December 8, 2015

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

Members Excused: Mr. Brand and Mr. Redman

Staff present: Mr. Krueger, Mr. Moreth, Mr. Aiello, Mr. Dernbach, Ms. Endter

  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 called the roll of the members who appeared by telephone. WCD staff  and members of the audience introduced themselves.
  2. Approval of minutes:  Ms. Bloomingdale requested the following amendment to the minutes of the November 19, 2015, meeting: on page 3, at the bottom under item #5, remove the words "occupational exposure" from the following sentence: "Mr. Beiriger explained that these changes are to make it clear that an occupational exposure employer has liability for any prior permanent disability arising out of employment with that employer." Ms. Seiler stated that she was not present at the last meeting but was listed as present. Mr. Beiriger moved to approve the minutes of the November 19 meeting with these amendments. Ms. Nugent seconded the motion. The minutes as amended were unanimously approved.
  3. Correspondence: Mr. O'Malley reviewed correspondence to the Council that was received since the last meeting.

    A memo from Attorney James Friedman, Godfrey & Kahn, S.C., dated December 4, 2015, on behalf of the Wisconsin Newspaper Association (WNA) requested the repeal of section 102.07(6) Wis. Stats., in the definition of employee section of the statutes, which provides,

    102.07(6)Every person selling or distributing newspapers or magazines on the street or from house to house. Such a person shall be deemed an employee of each independent news agency which is subject to this chapter, or (in the absence of such agencies) of each publisher’s (or other intermediate) selling agency which is subject to this chapter, or (in the absence of all such agencies) of each publisher, whose newspapers or magazines the person sells or distributes. Such a person shall not be counted in determining whether an intermediate agency or publisher is subject to this chapter.

    Ms. Beth Bennett, Executive Director of the WNA, addressed the Council and stated that many of their members were using the 9 part test for independent contractors and they have no option but to treat their delivery agents as employees. Under the statute, newspaper publishers and intermediate selling agencies do not have the option of applying the 9 part test contained in s. 102.07 (8), Wis. Stats. A similar provision in the UI statutes was repealed many years ago. Mr. Buchen pointed out this provision was a reaction to child labor laws years ago when children mostly delivered newspapers, and that now many delivery agents may meet the definition of independent contractors, even though children do not. Mr. O'Malley stated that he did not have time to research the issue before the meeting but that this section was enacted in 1937 and the footnote to the provision states, "This amendment was effected by Chapter 162, laws of 1937, effective May 23, 1937. The purpose is to do away with the troublesome question which has so often arisen as to the status of newsboys and magazine distributors almost without exception. Such persons will now be subject to the Compensation Act." Mr. Beiriger and Ms. Bloomingdale stated that this proposal would need more discussion and study.

    A letter dated December 7, 2015, was received from the Health Care Provider Liaisons to the Council, including Ms. Joanne Alig, Wisconsin Hospital Association; Ms. Annie Early, Wisconsin Physical Therapy Association; Mr. Mark Grapentine, Wisconsin Medical Society; and Mr. Tom Moore, Wisconsin Chiropractic Association.  In the letter there was a request for the Council to reconsider the $10.00 fee limit for copies of electronic medical records to be consistent with other government reimbursement rates of $26 per request. Ms. Alig addressed the Council. She pointed out that the Social Security Administration, and the Wisconsin Disability Determination Bureau, have fees of $26.00 for electronic records, and a fee of $26 in worker's compensation would create consistency among the government agencies and would make administrative sense. Ms. Alig also said that the Council had agreed to $20.00 in a prior bill and the health care providers had proposed $26.00 then. Ms. Bloomingdale and Mr. Beiriger said they would discuss this in caucus.

  4.  Changes to the Agreed Upon Bill Draft:  Mr. O'Malley stated that he was aware of a problem with the language in Section 32 of the draft bill in s. 102.175(3)(a) and (b) on pages 19 and 20. Mr. O'Malley said that he provided the drafter with the language that was submitted at the last meeting. Ms. Bloomingdale agreed and stated that the bill draft did not reflect the agreement reached at the last Council meeting that permanent partial disability (PPD) will be apportioned in cases of accidental injury. Ms. Bloomingdale pointed out that the actual language was included in the minutes of the last meeting, i.e.:

    Section 32 of the draft bill: s. 102.175 (3) (a) 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 of the bill: s. 102.175 (3) (b), line 2, add the following:

                            , including occupational exposure with the same employer

     Ms. Bloomingdale also proposed the following change to the draft bill, on page 2, in the drafter's analysis, change the phrase "is a cause of" to "is causal to." The sentence would read, "This bill provides that if an employee violates an employer policy against drug or alcohol use and such violation is causal to the employee's injury, then…" Mr. Buchen pointed out that the bill is correct and this only needs to be clarified in the analysis section. That was also true of the language concerning section 102.175 (1)(a) and (b), to make the language in the analysis consistent with the language in the bill.

  5. Caucus: There was a motion by Ms. Bloomingdale for the Council to go into closed caucus. Mr. Beiriger seconded the motion. The motion was unanimously approved. The Council went into closed caucus at approximately 10:40 a.m.

    The Council reconvened by teleconference at approximately 11:00 a.m.

  6. Approval of Changes to the Agreed Upon Bill Draft: Ms. Bloomingdale made the following motion to make changes to the agreed upon bill: to increase the fee for providing electronic records to $26.00 per request; to change the language in the drafter's analysis on page 2 from "is a cause of" to "causal to": on page 3 strike the words "occupational disease; to insert the language from the minutes of the last meeting (and set forth above) into Section 32 of the bill. Mr. Beiriger seconded the motion. The motion passed unanimously.

  7. Future Meeting Dates: The next meeting is set for December 22, 2015, at 1:00 p.m. The meeting will be by teleconference. The department will forward the latest draft of the bill to the members as soon as it is available. Mr. Beiriger asked for the Wisconsin Compensation Rating Bureau (WCRB) analysis to be provided at the next meeting, if not before.
  8. Adjournment: There was a motion by Mr. Beiriger to adjourn, seconded by Ms. Bloomingdale. The motion carried unanimously and the meeting was adjourned at approximately 11:30 a.m.