Worker's Compensation Advisory Council
Council on Worker’s Compensation
GEF-I, 201 E. Washington Ave.
Madison, Wisconsin
October 10, 2011

Members present:   Ms. Bloomingdale, Mr. Brand, Mr. Buchen, Mr. Kent, Mr. Metcalf, Ms. Nugent, Mr. Olson, Ms. Pehler, Mr. Schwanda, and Ms. Thomas

Excused:    Mr. Beiriger, Mr. Collingwood, Ms. Connor and Mr. Redman

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

  1. Call to Order/Introductions:  Mr. Metcalf convened the Worker’s Compensation Advisory Council (WCAC) meeting at approximately 9:20 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. Brand moved to approve the minutes of the September 12, 2011; second by Mr. Kent.  The minutes were unanimously approved.
  3. Correspondence:  Mr. O’Malley reported correspondence was received from the International Association of Industrial Accident Boards and Commissions (IAIABC) and the American College of Occupational and Environmental Medicine (ACOEM) expressing concerns regarding the growing use of opiods to treat worker’s compensation injuries.  The IAIABC is sponsoring a webinar on this topic on November 2nd and WCD staff will participate in the webinar.
  4. Report - Proposal Updates:  None.
  5. Discussion of all proposals:  Mr. Kent explained the additional language of Labor’s proposal to amend Wis. Stat. §102.42(2) on choice of practitioner.  The additional language clarifies that selection of the treating practitioner within the group health care/plan coverage is at the employee’s selection.  However, if the employee needs treatment from a specialist, the treating physician can refer the employee outside the group.  Ms. Nugent questioned if the proposal would eliminate occupational health clinics?  Mr. Kent explained that if an employer has a group health plan in place, the employee has a right to select a treating practitioner within that plan for the first 60 days. Ms. Nugent commented that some employees elect not to take the employer’s group health insurance because they have coverage with their spouse’s insurance and the plans may not match up.  In addition, good specialists may be eliminated due to restrictions in the group health plans.  Mr. Kent responded that employers may not have group health plans; however, if the employer has a plan in place, the employee must treat with a doctor in the plan.  Most worker’s compensation attorneys recommend that employees continue to treat with practitioners that are part of the group health plan.  The provider the employee normally sees can treat the employee for the worker’s compensation injury.  Ms. Pehler questioned the situation in which an employee terminates his/her employment and the employee opts not to continue their group health coverage through COBRA.  Mr. Kent responded that situation would result in an employee having free choice of a treating doctor.  The proposed statutory amendment will help employers who already have group health plans in place; it will not cover every circumstance.  The employee would need to be covered by an employer plan such as Blue Cross, Compcare, Unity, etc.; as long as the employer plan is in place at the time the employee seeks treatment.  The employee would likely continue treating with his/her family doctor, except if he/she needed treatment from a specialist.  This provision would give an employer the opportunity to negotiate with providers.  Ms. Nugent questioned how urgent care treatment would be covered.  Mr. Kent responded that the employee would see treatment from the urgent care clinic that is part of the employer’s group health plan.  The employee would need to seek treatment from a provider within the group plan.  Mr. Buchen responded that Management’s primary objective is to negotiate better rates for worker’s compensation coverage.  This proposal does not seem to meet that objective.  Mr. Kent replied that employers could approach the health insurance companies to propose that an additional rider be offered to cover workplace injuries.  Mr. Brand indicated the proposal would be difficult for worker’s compensation insurers to administer because every employer has a different group health care plan.  Ms. Nugent commented that about 25% of employees do not have a primary doctor.

    Motion by Mr. Brand, second by Mr. Kent that Management and Labor go into closed caucus; motion unanimously carried.

    Upon return from caucus, Mr. Kent provided a summary of the tentative agreement.

    1. The Department proposals previously agreed to as indicated in the summary provided by the Department.  
    2. Increase the maximum PPD benefit rate $10 in 2012 and another $10 in 2013.  
    3. The standard deviation for resolving reasonableness of fee disputes will be reduced to 1.2.  The WCAC will establish an audit committee to study the databases.  The audit committee will consist of one representative from Labor, one representative from Management, one Department representative and one Medical Liaison.  The audit committee will decide the scope of the audit.  The audit must commence within six months from the date of enactment of the law.  If the audit does not commence within that time, the standard deviation will be increased to 1.3 and the maximum PPD benefit rate will only be increased $5 in 2013.  
    4. The Department will establish a committee to study funding for permanent total disability benefit (PTD) future increases.  The agreed bill will not contain any increases in supplemental benefits.
    5. Eligibility for compensation for disfigurement will be limited to employees that sustain an actual wage loss.  Labor will provide draft language to the WCD staff.  
    6. The Department will have the authority to hold a formal hearing in a dispute over eligibility for vocational retraining when the worker is certified by DVR for a retraining program.  In addition, wages earned by an employee while attending a formal training program will not be offset against temporary disability benefits payable during that time.  
    7. Labor has agreed to Management proposals # 11 (amending §102.17(4) to clarify that the payment of medical treatment or burial expenses does not extend the statute of limitations for occupational disease injuries) and #15 (final medical reports will not be required in cases involving uncontested denials of indemnity).

    Mr. Brand questioned the summary of the agreement involving vocational retraining claims. Management thought they had agreed to Labor proposal #3 concerning payment of retraining costs (i.e. tuition, fees and books). Management did not agree to Labor proposal #11 involving prospective orders for vocational retraining benefits; they agreed to Labor proposal #3 and were open to discussing Labor proposal #10 (eliminating the offset of wages earned while in retraining against TTD benefits).

    Mr. Leonard asked if the state would agree to sue on a provider’s behalf if, after the audit is complete, Ingenix is found not be in compliance.  Mr. O’Malley responded that the Ingenix database no longer exists; the certified database is now under Fair Health.   Further the state would not have standing to sue.  A provider would need to file suit if they are seeking damages.  If it was found that a database was not in compliance with statutory and administrative rule requirements, the Department could decertify the database.

    Mr. Metcalf inquired whether the WCAC was authorizing the Department to study the entire health cost dispute resolution process.  Mr. Buchen responded the WCAC would consider such a study after the audit of the certified databases is complete.

    The WCAC unanimously agreed to caucus briefly.  Upon return from caucus, Mr. Kent asked Management to explain its opposition to Labor #11, as there is no cost component to the amendment and it would enhance return to work of injured workers.  

    Mr. Brand indicated that Management could not agree to Labor #11 without further discussion among the Management members of the WCAC.  Mr. Kent questioned how many cases per year would involve prospective orders for retraining.  Ms. Knutson responded that the number of cases per year would likely not exceed twenty.  Mr. Tom Flannagan indicated the injured worker would only seek a prospective order once an individual plan for employment (IPE) had been developed by DVR or a private rehabilitation counselor.  Currently in most cases there is a dispute concerning the plan itself or there are causation issues with respect to the injury.  The employee is unable to attend school without a determination of liability for the retraining.  Mr. Brand indicated the WCAC should further consider this issue at another meeting.

    Mr. David Weir will draft a short memorandum addressing Labor proposal #11 and send it to Mr. Metcalf to distribute to the WCAC.

    Labor and Management confirmed they have agreed to Labor proposals #3 and #10 and Management is considering Labor proposal #11. 

  6. Adjournment:   Motion by Mr. Kent, second by Mr. Brand to adjourn.  The motion carried unanimously and the meeting was adjourned at approximately 4:15 p.m.

    Next Meeting:  October 17, 2011 at 9:00 a.m.

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