Worker's Compensation Advisory Council
Council on Worker's Compensation
GEF-I, 201 E. Washington Ave.
Madison, Wisconsin
January 18, 2012


Members present:   :  Mr. Beiriger, Mr. Brand, Mr. Buchen, Mr. Collingwood, Mr. Kent, Mr. Metcalf, Ms. Nugent, Mr. Olson, Ms. Pehler, Mr. Redman, and Mr. Schwanda

Excused:    Ms. Bloomingdale, Ms. Connor, and Ms. Thomas

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

  1. Call to Order/Introductions:  Mr. Metcalf convened the Worker's Compensation Advisory Council (WCAC) meeting via teleconference at approximately 10:00 a.m. in accordance with Wisconsin's open meetings law.  WCAC members, staff and members of the audience introduced themselves. 
  2. Approval of Minutes:  Mr. Kent moved to approve the minutes of the October 17, 2011 without correction; second by Mr. Buchen.  The minutes were unanimously approved. 
  3. Correspondence:  Mr. O'Malley reported on correspondence received from Mr. Keith Noll, Wisconsin Amateur Athletic Union.  Mr. Noll expressed his support for AB 443, which provides that Wis. Stat. §102.07(4) would be amended to provide an exclusion from worker's compensation coverage for game officials. 

  4.  Legislation:  Mr. O'Malley explained AB 443 was introduced in the Assembly, sponsored by Rep. Fields.  The bill creates an exclusion (§102.07(4)(a)(1m)) for sports officials for coverage under the Worker's Compensation Act.  Mr. Metcalf, Mr. O'Malley and Mr. Krueger met with Rep. Fields and discussed the bill.  A hearing scheduled on the bill was cancelled.

    Mr. O'Malley explained that SB 352 and AB 450 are companion bills that were introduced in the Legislature late last month.  The bills amend the unemployment compensation statutes to allow employees collecting unemployment insurance benefits to enroll in an on-the-job training (OJT) program for up to 6 weeks with the intention the employee will be hired into a permanent job.  The employee participating in the OJT would receive in addition to their unemployment benefits, a $75 per week stipend while they are attending training.  The goal is for the employee to obtain full-time employment at the end of the OJT.  The bill provides for two changes to the Worker’s Compensation Act.  The first change is to create Wis. Stat. §102.07(19), indicating the person participating in the OJT would be considered an employee of the state, not the work site employer, for purposes of worker's compensation.  The second change is to create Wis. Stat. §102.29(12) indicating that an individual participating in the OJT is considered a state employee and the individual is prohibited from bringing an action in tort against the work site employer for an injury occurring while participating in the OJT.  The language would be similar to that dealing with students, internships and W-2 participants.  The individual's legal remedy, if injured, is to file a worker's compensation claim against the State of Wisconsin.  Hearings were held on these bills last week.

    Mr. Buchen commented that the bill is modeled after a program in Georgia and it has bipartisan support here along with the approval of the Unemployment Insurance Advisory Council.  This would be a pilot program, with a 2-year sunset provision.  The expectation is 500 employees would participate in this program.  The bill creates obligations for the state, but does not affect the worker's compensation system or the WCD.

    The WCAC members discussed the potential issues of employer liability for increased compensation for safety violations and setting the average weekly wage for OJT participants.  Mr. Buchen moved, seconded by Mr. Kent, to approve SB 352 and AB 450 with amendments as follows:  amending Wis. Stat. §102.57 to provide the worksite employer would have liability for increased compensation for safety violation and cross-referencing Wis. Stat. §102.11(1)(c) for calculation of the average weekly wage in these cases.  The motion carried unanimously.

  5. Discuss "Agreed Bill" Draft:  Mr. O’Malley indicated he received an e-mail from Attorney David Weir suggesting removal of the strikeout of "102.43(5)(c)" on page 7, line 6 of the bill draft Mr. O'Malley explained the WCD will request that the drafter revise the bill draft to include the sunset provision using the in-text method, rather than using the non-statutory provision method of drafting. This provision relates to the changes in payment of temporary disability benefits during retraining to reduce benefits only if the injured employee works more than 24 hours during retraining period. This provision is an exception to the underlying premise that the law in effect on the date of injury controls in worker's compensation.

    Attorney Weir suggested that page 16, line 23 of the bill draft be corrected to remove “a” when referring to permanent disabilities that qualify for Second Injury Fund benefits under Wis. Stat. §102.59. It is necessary to strike “a” in the bill draft text because in determining qualifying weeks of pre-existing disability, the department adds the weeks of disability in various types of preexisting disability. The combination of pre-existing disabilities must total 200 weeks or more as a prerequisite for Second Injury Fund benefits. Attorney Weir commented that the drafter attempted to “clean up” current language by removal of the “a” in the text; the intention was not to change current law.

    Mr. Brand suggested an additional correction to page 22, line 21 to change "6th" month to "7th" month to allow 6 full months to initiate the audit of the certified databases as agreed by the WCAC.

    Mr. Buchen moved, seconded by Mr. Kent to approve the bill draft with the three corrections of including the sunset language in the text of the statute, removing “a” on page 16, line 23 and changing "6th" to "7th" on page 22, line 21. Motion carried unanimously and the bill draft was approved as corrected.

    Mr.Kent moved, seconded by Mr. Schwanda, to table any action on AB 443 until after the WCAC public hearings. The motion carried unanimously.

    Mr. Metcalf indicated the WCD is increasingly concerned over the solvency of the Work Injury Supplemental Benefit Fund (WISBF). The WCD is continuing its internal analysis on the financial status of the WISBF as the cash balance is declining. In addition, the Supreme Court decision in the Society Insurance v. LIRC has resulted in increased expenditures from the WISBF.

  6. Adjournment:   Motion by Mr. Kent, second by Mr. Brand to adjourn.  The motion carried unanimously and the meeting was adjourned at approximately 11:00 a.m.

    Next Meeting:  not scheduled yet.
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