Worker's Compensation Advisory Council

Council on Worker’s Compensation
Crowne Plaza
Madison, Wisconsin
January 10, 2011


Members present:   Mr. Beiriger, Mr. Brand, Mr. Buchen, Mr. Collingwood, Ms. Connor, Mr. Kent, Ms. Nugent, Mr. Olson, Ms. Pehler, Mr. Redman, Mr. Schwanda, Ms. Thomas, and Mr. Vincent for Rep. Ballweg

Excused:    Ms. Bloomingdale

Staff present:   Mr. O’Malley, Ms. Knutson, Mr. Krueger and Mr. Aiello

  1. Call to Order/Introductions: Mr. O’Malley convened the Worker’s Compensation Advisory Council (WCAC) meeting at approximately 10:30 a.m. in accordance with Wisconsin’s open meetings law.  WCAC members, staff and members of the audience introduced themselves.  Mr. O’Malley reported that a Division Administrator had not yet been appointed. 
  2. Minutes: The minutes of the November 08, 2010 meeting were unanimously approved without correction.
  3. Hearing Comments: Mr. O’Malley reported the public hearing was held via videoconference on December 13, 2010.  Attorney Sandoz from Appleton spoke at the afternoon session and Attorney Gillick from Milwaukee spoke at the evening session.  Their comments are included in the proposals from the public.  Several members of the WCAC attended the hearing at the Madison, Milwaukee, and La Crosse locations.  
    Robert Glaser, Commissioner at the Labor and Industry Review Commission introduced Tracey Schwalbe, LIRC General Counsel.  Ms. Schwalbe replaced Mr. Pflasterer.  She was previously employed with the Unemployment Insurance Division. 

  4. Correspondence: Ms. Knutson reviewed the recent correspondence and reported that it was all related to proposals for statutory changes and would be covered in detail by Mr. O’Malley.  In addition, the Wisconsin Judicial Conference in October 2010 submitted a proposal for legislative changes to authorize reserve judges to act as temporary administrative law judges to hold worker’s compensation and unemployment compensation hearings.
  6. Legislative Timeline:  At the next meeting, Labor and Management plan to present their proposals.  The goal is to have the agreed bill introduced and passed in the Legislature and signed by the Governor in time for it to be in effect January 1, 2012 to allow for easier administration with regard to benefit rates, etc.  The WCAC in the past has allowed comments from the public at WCAC meetings with a deadline for proposals from the public to be considered in the agreed bill cycle.  The WCAC agreed that proposals from the public received after the March 2011 meeting would be held over to the next agreed bill cycle and would not be included in deliberations this year.

  7. Department Proposals:  Ms. Knutson reviewed the Department’s proposed statutory and administrative rule changes.
    1. Amend §102.13(2) to provide that if an employee suffers an eye injury requiring treatment, that a final medical report must be filed indicating whether the employee sustained any permanent partial disability.  
    2. Amend §102.17(4) to provide that the Work Injury Supplemental Benefit Fund (WISBF) will pay benefits or treatment expense for barred traumatic injuries if the statute of limitations expired on the claim before April 1, 2018.    Mr. O’Malley explained that the recent Wisconsin Supreme Court decision in Society Insurance v. LIRC created two categories of cases, those where the statute of limitation expired before the April 1, 2006 amendment and those where it expired after the April 1, 2006 amendment.  This proposal would close the gap in coverage for those cases where the statute of limitations expired after the April 1, 2006 amendment.  
    3.  Amend §102.29(1) to provide that WISBF shares in any third party settlement proceeds, similar to the Uninsured Employer’s Fund.  
    4.  Amend §102.35(1) to provide that interest on surcharges accrues if they are not paid within 30 days rather than 90 days to synchronize payments with the state’s accounting system.  
    5.  Amend §102.44(1)(c) to require insurers or self-insured employers to submit within six months, any request for reimbursement from the WISBF for supplemental benefits paid.  
    6.  Amend §102.59(1) to clarify that an employee may receive benefits only once from the Second Injury Fund. 
    7.  Amend §102.64(2) to provide that the department may contract with DOA or a third party administrator (TPA) to handle WISBF claims.  Further, that a TPA may hire a private attorney to defend WISBF and charges for services shall be paid from the WISBF.  
    8.  Create §102.65(3) to prioritize or cease payments from the WISBF if the fund is encumbered 85% when considering known claims.   
    9.  Amend §DWD 80.02(2)(e) to clarify that WKC13 forms must be filed for injuries with disability beyond 3 days even if salary continuation is paid.  
    10.  & 11.  Amend §DWD 80.02(2)(e)1 and 2  to clarify that salary continuation must be reported.  
    1.  Amend §DWD 80.02(2)(e)4 to provide if the employee suffered an eye injury requiring treatment, a final medical report must be filed.  The final medical report must be completed by a physician, podiatrist, surgeon, psychologist or chiropractor.  
    2.  Create §DWD 80.02(2)(e)5 to require an updated WKC13 filed with WCD and the new TPA whenever there is a change in TPAs.  
    3.  Amend §DWD 80.02(2)(g)2 to clarify the notice of denial requirements.  A denial letter is required on medical only cases that are compensable.  
    4.  Create §DWD 80.02(k) to require carriers and self-insured employers to annually submit, on a form prescribed by the department, the PTD payments and supplemental benefit payments made during the previous calendar year.  
    5.  Amend §DWD 80.02(2m)(a)1 to clarify that when medical expenses are denied, a copy of the denial letter should be sent to the department if the claim is reported to the WCD.  
    6.  Amend §DWD 80.49(7)(a) to strike language referring to a department form when notifying the employee of their potential eligibility to receive rehabilitation services.  
    7.  Create §DWD 80.72(4)(g) to allow the department to require that documents be submitted to the department and the other party to the dispute via certified mail in reasonableness of fee disputes.  
    8.  Amend §DWD 80.73(6)(g) to allow the department to require that documents be submitted to the department and the other party to the dispute via certified mail in necessity of treatment disputes.  
    9.  Delete §DWD 81.06(1)(k)4 referring to a health care provider directing only one completed functional capacity evaluation per injury.   Mr. O’Malley explained there is a difference between a functional capacity assessment and a functional capacity evaluation.  He will contact the Health Care Advisory Committee to obtain further explanatory information on this proposal.  
    10. Several provisions of ch. DWD 80 relating to PPD ratings need to be reviewed for updating including ratings for eye injuries, thoracic spine fractures, cervical fusions, etc.
    Mr. O’Malley commented that the department may be presenting an additional proposal to amend Wis. Stat. §102.425 relating to the pharmacy fee schedule in the event the average wholesale price as listed in the Red Book is discontinued.  In that event, a new base price for prescription drugs would need to be established to resolve pharmaceutical disputes.

  8. Public Proposals:  Mr. O’Malley reviewed the proposals from the public.

    1. Attorney John Edmondson requests an amendment to §102.13(1)(b) to require practitioners and vocational experts who examine employees at the request of employers and insurance carriers to forward a copy of the report to the employee and his/her attorney at the same time the report is sent to the party who requested the evaluation.
    2. Attorney Walter Stern requests new provisions and an amendment to §102.17(1)(d) relating to medical record reviews, opinions of physicians and psychologists relating to mental conditions, and opinions of practitioners related to toxic exposure claims.
    3.  Rep. Peter Barca requests that the amount for burial expense be increased. (The burial expense was increased effective May 1, 2010 to actual cost up to $10,000.) In addition, in cases where an employee who has no dependents is murdered while working, funds should be provided to the county where the employee resided to establish a victim’s fund to be used for grief counseling for members of the deceased employee’s family. Mr. O’Malley commented that the WCD met with the parents of the boy that was murdered. When there are no surviving dependents, the unestranged parents receive $6,500 and the balance of the death benefits is paid to the WISBF. The current amount payable to unestranged parents has been in effect since 1990. Prior to that date, the death benefit amount payable to unestranged parents was $5,000.
    4.  The Wisconsin Judicial Conference resolution requests an amendment to §102.18(2) to authorize the department to hire reserve judges to serve as temporary administrative law judges for the WCD. Mr. O’Malley commented that the WCD could hire reserve judges to serve as administrative law judges without a statutory change. The pay for reserve judges is higher than the pay for ALJs.
    5.  Sen. Neal Kedzie proposes amendments to §102.03(2) and §102.47(1) to create an exception to the exclusive remedy to allow parents of a minor killed on the job to sue the employer for damages and to provide in cases where deceased employee is a minor with no surviving dependents, that payment of the death benefits be directed to the surviving parents rather than the WISBF.
    6.  Attorney Patricia Sandoz requests an amendment to §102.13(2)(a) to require employers and insurance carriers to provide copies of records obtained by the use of an authorization signed by the employee, to the employee at no charge within 10 days of the employee’s request.
    7.  Attorney Michael Gillick proposes amendments to §102.26(2) and §DWD 80.43(2) to allow attorney’s fees of 20% on unpaid medical expenses and paid medical expenses reimbursed to the employee.
    8.  The Wisconsin Academy of Physician Assistants requests an amendment to §102.17(1)(d)1 to allow physician assistants to render opinions on the cause and extent of disability.
    9.  Rep. Peter Barca proposes an amendment to §102.50 to increase the burial expense benefit to actual costs up to a maximum of $20,000 and provide that the WCAC review this amount every five years. He also proposes an amendment to §102.48(1) to provide that the amount of death benefits for young adults under the age of 27 be the same regardless of whether the employee has dependents. Finally, he requests a new statute to establish a state-wide survivor fund to be funded by death benefits that would otherwise be payable to the WISBF.
    10.  The Wisconsin Association for Justice, WC Committee proposes six statutory/administrative rule changes. The first proposal is to allow payment of attorney’s fees on unpaid medical expenses and reimbursed medical expenses paid by the employee. The second change involves creating a rule that provides for deducting the net amount of sick pay rather than the gross amount of sick pay from awards for temporary total disability (TTD). The third proposal is to amend §102.43(5) to eliminate the reduction in TTD benefits for employees who are receiving TTD while attending retraining and are working part-time. The forth proposal would amend §102.18(1)(b) to allow the department to issue prospective orders for vocational rehabilitation retraining benefits. The fifth proposal is to amend §102.13(2)(a) to require employers and carriers to provide copies of records obtained with the use of an authorization signed by the employee to the employee upon request within 10 days. The final proposal is to eliminate the term “independent medical examination” when referencing requests for examinations of employees by employers and carriers.

  9. Adjournment:  Discussion on all agenda items concluded and the meeting was adjourned at approximately 12:45 p.m.    
    Next  meeting:  Monday, February 14, 2011.
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