Website - Division of Worker's Compensation
Email - WC Administration
Website - Division of Worker's Compensation
Email - WC Administration
Members present: Mr. Beiriger, Mr. Buchen, Mr. Collingwood, Ms. Connor (for Mr. Scott), Ms. Huntley-Cooper, Mr. Kent, Mr. Newby, Ms. Nugent, Mr. Olson, Ms. Pehler, Mr. Redman, Mr. Schwanda, Ms. Vetter
Excused: Mr. Brand
Staff present: Mr. Aiello, Mr. Conway, Mr. O’Malley, Ms. Knutson, Mr. Krueger and Ms Halsey
15. Amends §§102.17(4) and 102.66(1) regarding the retroactive application of the 2006 amendments to the statute that provided insurers were responsible for benefit payments for certain barred traumatic injuries. To date there have been two circuit court decisions on insurers’ challenges to the constitutionality of the retroactive application of the statutory amendments. The circuit court in Fond du Lac County found the statute unconstitutional and that case is on appeal to the Court of Appeals, District 2. The circuit court in Dane County found the statute constitutional. If that case is appealed, it would be heard in the Court of Appeals District 4. If the statutory amendments are found unconstitutional, there would be no coverage for injured workers with certain barred traumatic claims for a period of time. The department is proposing a contingent amendment to provide that in the event the retroactive application is found to be unconstitutional, payment of benefits would revert to the WISBF for a period of time.
16. Amends §102.29(10) to use correct terminology. This amendment is requested by the Legislative Reference Bureau drafter. The statutory section was added to our law effective January 19, 2006 and the amendment did not come through the WCAC agreed bill process. It provides protection against third party claims for health care facilities filed by health care providers who provide care under a declared state of emergency.
17. Amends §DWD 80.49 regarding vocational rehabilitation benefits to update terminology.
18. Repeals §DWD 80.62(8) regarding providing quarterly reports to the Governor and Legislature on the Uninsured Employers Fund. The statutory provision requiring the reports expired many years ago.
Mr. O’Malley explained that statutory amendments to the Worker’s Compensation Act are contained in the 2009 budget bill (2009 AB 75). Domestic partners would be defined as dependents and entitled to death benefits. The WCD has not been asked to prepare a fiscal estimate on the impact on the WISBF. Death benefits are paid to the WISBF in 5 yearly installments if the decedent left no dependents.
The budget bill also contains an amendment to Wis. Stat. §102.64(2) and (3), providing the WCD an option of retaining the Department of Administration (DOA) or a third party administrator to handle claims for payments into or out of the WISBF. The costs of claim administration would be paid out of the WISBF. The Department of Justice would still represent the WISBF at hearings or on appeal. This proposal came through the budget drafting process at DOA.
The WCAC members expressed concern with these two budget bill provisions and the circumvention of the agreed bill process. While the proposed change in claims administration is ministerial, the addition of domestic partners as dependents involves a change in a substantive benefit provision in the Workers Compensation Act. The Labor and Management co-chairs will author a letter to the Governor and the Joint Finance Committee of the Legislature expressing their objection to the process of including such provisions in the budget bill rather than referring the matter to the WCAC for deliberation and possible inclusion in the agreed bill.
Labor & Management Proposals: Mr. Buchen presented Management Proposals as follows:
1. Provide that the exclusive remedy applies to contractors and subcontractors and financial responsibility for the third party may not be transferred back to the statutory employer.
2. Institute an effective medical cost containment system, with details to be provided at a later date.
3. Amend §102.17(4) to provide that for barred traumatic claims, the employee must have had the prosthesis implanted prior to the statute of limitations running.
4. Eliminate payment of medical expenses or hearing aids for cases where there is no compensable hearing loss.
5. Cease permanent total disability benefits upon receipt of Social Security Retirement benefits.
6. Management is requesting information from the WCD on the status of the WISBF including payments for hearing aids where there has been a previously compromised claim.
7. Eliminate death benefit payments for employees who are permanently totally disabled and who die from causes not related to the work injury.
8. Require that employees state the basis for bad faith claims with reasonable specificity and have WCD staff conduct an initial review of such claims to determine if there is probable cause to proceed.
9. Limit benefits for permanent total disability (PTD) to situations where employees are unable to perform any work (statutory permanent total disability claims). All other claims would be treated as loss of earning capacity. Increase PTD rates to a six-year lag level and index benefits for inflation.
10. Disallow temporary disability benefits for individuals that are legally not able to work. This includes individuals that are incarcerated and illegal aliens.
Mr. Newby presented Labor Proposals as follows:
1. Raise indemnity levels for employees receiving PTD benefits up to current levels with a six-year lag. Index PTD benefits annually going forward.
2. Increase benefits for burial expense to $10,000.
3. Increase permanent partial disability maximum benefit rates $10 each year.
4. Provide that the employer/insurer shall pay the reasonable cost of the rehabilitative training program recommended by the Division of Vocational Rehabilitation (DVR) counselor. Attorney David Weir explained that currently for those employees served by DVR, tuition and book costs are paid by DVR. However, DVR is limiting funding to up to $4,000 and is not providing funding if there is another payer. Labor’s proposal would provide that the carrier must pay the tuition and book costs in these cases. The WCAC requested that the WCD gather information on the cost of a technical school and public university education. Management requested information on DVR rules for regular attendance and academic progress.
5. Labor that the WCD provide information on the current cost of their Department Proposal No. 1.
6. Labor that the WCD provide information on the comparison of Wisconsin indemnity rates with those of other states.
Management indicated that it was considering support of Public Proposal No. 7 (Part 2) with regard to recording of hearings by a party or the public, due to past demeanor issues of administrative law judges. If they are in agreement with that proposal, it will be included in Management’s proposal list at the next meeting. Management has questions on Public Proposal No. 2; Labor also has questions on this proposal.
Mr. Beiriger provided Management’s response to the Department’s proposals as follows (numbers reference the proposal numbers)
12. through 14 Management has no position at this time
15. WCD to present more information
16. The proposed language change is okay; however Management has a question on whether the coverage provided by the statute should be broader
Mr. Newby provided Labor’s response to the following Public Proposals:
2. No position.
Mr. Newby also provided Labor’s response to the following Department Proposals:
15. Need more
information. Labor suggested that perhaps this issue should wait to be
addressed at the next agreed bill cycle.
Mr. Newby indicated with respect to Management Proposal No. 2 that Labor was hoping for a joint provider/management proposal with respect to medical cost containment. It is getting late in the agreed bill cycle to consider a new major proposal. With regard to Management Proposal No. 8, Labor a response from WCD referencing estimated cost and due process considerations.
For the Public Proposals that Labor agreed with, they will become part of Labor’s proposal list. If Management agrees with any of the Public Proposals, they will become part of Management’s proposal list.
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