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Compensation Advisory Council
Council on Worker's Compensation
May 8, 2009
Members present: Mr. Beiriger, Mr. Brand, Mr.
Collingwood, Ms. Connor (for Mr. Scott), Ms. Huntley-Cooper, Mr. Kent, Ms. Nugent, Ms. Pehler,
and Mr. Redman
Excused: Mr. Newby, Mr. Schwanda, Ms. Vetter
Absent: Mr. Olson
Staff present: Mr. Aiello, Mr. Conway, Mr. O'Malley, Ms.
Knutson, and Mr. Krueger
- Call to Order/Introductions: Ms. Huntley-Cooper convened the
Worker's Compensation Advisory Council (WCAC) meeting at approximately 9:30
a.m. in accordance with Wisconsin's open meetings law. WCAC members, staff
and members of the audience introduced themselves.
- Minutes: The minutes of the April 13, 2009 meeting were
unanimously approved with correction of the typographical errors on pages 2
- Public Comment: Mr. John Fales, Chief of the Medford Area Fire
Department and Mr. Ron Bohn, Service Director of Taylor County Ambulance
provided a handout and requested that the WCAC consider amending Wis. Stat.
§102.03 to provide the same worker's compensation coverage for emergency
responders as provided to members of the state legislature under Wis. Stat.
§102.03(1)(g). Their goal is to clarify that emergency responders are in
the scope and course of employment from the time summoned until their duties
are complete, providing coverage portal to portal. A recent claim by a
volunteer firefighter injured en route to the fire station while responding
to a call was denied by the city of Medford's worker's compensation
carrier. Mr. O'Malley explained that the volunteer firefighter would likely
be covered under the special errand rule, which is an exception to the
general rule that employees are not covered while commuting. The volunteer
firefighter in this case has not yet filed an application for a hearing.
Mr. Fales explained that this is not a random case; denials of coverage have
occurred in the past in similar circumstances. Mr. O'Malley indicated he
was not aware of any other cases with similar facts resulting in denial of
benefits. The proposal would likely result in an amendment to Wis. Stat.
§102.03(1)(c)2. Mr. Conway explained that this proposal would be added to
the list of public proposals and would be addressed under the WCAC agreed
bill process; it may become a Labor or Management proposal. Mr. David
Bloom, Wisconsin State Fire Chiefs' Association, Inc., informed the WCAC
that most injuries suffered by volunteer firefighters en route to a fire
call are paid by the insurance carrier. Most volunteer firefighters are
told by the municipalities that they are covered in the event of an
Ms. Patricia Grillot expressed concern regarding the low rate of
permanent total disability benefits for employees who have been receiving
benefits for a number of years. She also emphasized that it is difficult to
retain an attorney when the only dispute is payment of medical expenses.
- Correspondence: None.
- Reports: Ms. Knutson provided a handout on the current
Certification of Readiness process. The Certification of Readiness process
has been in place since August 2007. Applicant attorneys notify the WCD
that they are ready to proceed to hearing on specific issues by filing a
complete Certification of Readiness (COR) form and supporting medical and/or
vocational evidence. Applicant attorneys also certify the carrier was
provided notice of the claim and has either denied the claim in full or has
had at least 90 days notice of claim to investigate it. If the COR is filed
with the hearing application, the claim is not scheduled for hearing for at
least 30 days to allow the carrier time to file an answer and for the
carrier's attorney to file notice of legal representation. Objections to
the COR filed by the carrier are reviewed on a case by case basis. The
ready unscheduled caseload has dropped from about 5,000 to about 500 cases
as of May 2009. The not ready caseload has increased from about 1,000 to
about 2,900 as of May 2009. The WCD periodically reviews the not ready
caseload for appropriate action. The average wait time for a formal hearing
has dropped from an average of well over 12 months to an average of 4 to 5
Ms. Knutson reported on updated statistics on the health cost
dispute process. Of the 2,775 health cost disputes filed in 2008,
approximately 71% were reasonableness of fee disputes, 5% were necessity of
treatment disputes and the rest were requests for default orders due to
non-payment by the carrier. For reasonableness of fee disputes in 2008,
over 70% of the orders favored the provider with 7% dismissed as paid in
full. The number of projected health cost disputes for 2009 will be around
4,000. For the necessity disputes, the number of disputes per year has
remained fairly steady at about 50 for the past few years. Based on staff
experience, in 80 to 90% of cases additional medical treatment fees are paid
to the provider in necessity of treatment disputes. Of the disputes filed
in 2008 and 2009 (to May 1, 2009), the carrier only paid approximately 35%
of the billed charges so that 65% of the billed charges were in dispute.
Mr. O'Malley explained the Department's new proposal #20, amending Wis.
Stat. §102.04(1)(b)1. to clarify that a Wisconsin worker's compensation
policy is required if an employer usually employs 3 or more employees for
services performed in this state. This proposal is in response to the
recent Wisconsin Court of Appeals decision in Estate of Torres v. Morales.
In that case, an out of state employer sent two employees to Wisconsin for
training. One employee died in a motor vehicle accident. The Court found
that the employer was required to have coverage in Wisconsin because it met
the definition of employer by virtue of having 3 or more employees, even
though only 2 employees were providing services in Wisconsin. The Uninsured
Employers Fund would be responsible for payment of benefits and enforcement
of the insurance requirement for out of state employers would be very
difficult. The WCAC unanimously approved Department proposal #20.
Department Proposals: : Mr. Kent indicated that Labor was including
the Medford Fire Department proposal as its proposal #5 and Labor will
provide proposed language for a statutory amendment. Mr. Beiriger suggested
that Labor narrow the language to include the small group of employees
intended to be covered.
Management and Labor both expressed a desire to further negotiate on
proposed statutory amendments. Mr. Kent indicated the medical providers
came forward with a proposal to freeze medical costs with indexing future
costs in conjunction with the Medical Consumer Price Index. Labor is
seeking closure of the permanent total disability benefit issue. Mr.
Beiriger voiced concern that the WCAC agreed bill process remains intact for
the benefit of the Wisconsin Worker's Compensation system.
Mr. Kent, on behalf of Labor, responded to Management's updated proposal as
- Labor would agree to increase
maximum PTD benefits for old cases up to a six year lag and index benefits
going forward in exchange for a medical fee schedule/medical cost
- Labor would agree to preclude
eligibility for temporary total disability benefit for those employees
incarcerated with no dependents and no Huber (work release) privileges.
- Labor would agree to
requiring the WCD to hold prehearing conferences on all bad faith claims to
identify the underlying facts for the claim.
- Labor would agree to an
amendment eliminating payment of hearing aids in cases with no compensable
hearing loss effective January 1, 2012.
- Labor agrees to increase the
maximum permanent partial disability benefit rate $10 for each of the next
- Labor would agree to increase
PTD supplemental benefit eligibility from injuries occurring prior to
January 1, 1993 to injuries occurring prior to January 1, 1998 (a five-year
- Labor agrees to increase the
maximum burial expense to $10,000.
- Labor is withdrawing its
proposal #4 concerning vocational rehabilitation benefits. The issue will be revisited at a later time.
- Labor proposes to amend
§102.03(1)(c)2 the second paragraph to read:
'and in the ordinary and usual way or any employee, volunteer or
member of an emergency management unit under sec. 102.07(7) responding to a
call for assistance from the time of the summons to the emergency to their
return from the emergency.
- Labor accepts all of the
Department proposals except #6 which may be revisited at another time, and
Labor would hold on #19 pending review of draft language.
- New Business: None.
- Adjournment: Discussion on all agenda items concluded and the
meeting was adjourned at approximately 2:45 p.m.
Future meeting dates: June 5th, at the Crowne Plaza in