Council on Worker’s Compensation
Meeting Minutes
GEF-1 Building
Madison, Wisconsin
October 15 , 2013

Members present: Mr. Beiriger, Ms. Bloomingdale, Mr. Brand, Mr. Brandl, Mr. Buchen, Mr. Redman, Mr. Kent, Mr. Metcalf, Ms. Nugent, Ms. Pehler, Mr. Ginsburg, Ms. Thomas and Mr. Schwanda

 Staff present: Mr. Aiello, Mr. Ezalareb, Mr. Krueger, Mr. Moreth, and Mr. O’Malley

  1. Call to Order/Introductions: Mr. Metcalf convened the Worker’s Compensation Advisory Council (WCAC) meeting 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 suggested a correction in the minutes for the September 17th, 2013 meeting to the last sentence of the second paragraph in Item No.9 related to the letter from the Senate and Assembly Labor Committee Chairs. The correction is to delete and replace the sentence with the following,” Mr. Kent recommended to the Council the Department of Justice may function as a backup if local district attorneys do not want to bring charges.” Mr. Kent moved to approve the minutes of the September 17th, 2013 meeting as corrected. Mr. Beiriger seconded the motion. The minutes, as corrected, were unanimously approved

  3. Letter from Senate and Assembly Labor Committee Chairs: Mr. O’Malley reviewed the letter dated September 30th, 2013 from Representative Dan Knodl, Chair of the Assembly Committee on Labor, Senator Glenn Grothman, Chair of the Senate Committee on Judiciary and Labor, and seven other members of the Assembly. The letter contained suggestions for legislative changes for the Council to consider. The suggestions contained in the letter were grouped into three areas, addressing increasing medical costs, fraud detection and enforcement and administrative law judge reform. The suggestions contained in the letter included the following:

    The Council should consider allowing insurance carriers to utilize health networks.

    Fees regarding medical record copies do not reflect the digitalization of records and should be adjusted accordingly. Mr. O’Malley stated this suggestion is included in Labor Proposal No.2 to limit the charge to $20 per request for providing copies of medical records in an electronic format.

    The legislators encouraged the Council to work with the Department of Workforce Development and the Health Care Provider Advisory Committee to conduct a thorough review of the treatment guidelines contained in Ch. DWD 81 of the Wisconsin Administrative Code.

    The Council should work with the Department of Workforce Development and the Health Care Provider Advisory Committee to ensure partial disability ratings in DWD 80.32 of the Wisconsin Administrative Code are reasonable and up to date. Mr. O’Malley advised that the Department is currently working on a project to update the minimum disability ratings in DWD 80.32.

    The U.S. Supreme Court decision in Industrial Commission v. Mc Cartin prevents employees from being able to stack worker’s compensation awards. The legislators encouraged the Council to codify this case law rule in state statute and to look at how other states deal with concurrent jurisdiction to ensure individuals are not using Wisconsin to enhance their benefits. Mr. O’Malley stated that under this case law employees are not allowed to double dip in Wisconsin by collecting on successive claims in more than one state. Mr. Schwanda inquired about the number of concurrent jurisdiction cases that occur in Wisconsin. Mr. O’Malley stated there are very few with no more than approximately 10 per year. Mr. Buchen requested an example of a concurrent jurisdiction claim. Mr. O’Malley stated when an injured employee received indemnity payments of $1,000 from a claim in another state and could also maintain a claim for that injury in Wisconsin with a total value of $1,500, the individual would be eligible to receive $500 for indemnity payments in Wisconsin for that injury.

    There are cost containment measures in place for prescription drugs, however, those policies do not extend to on-site physician dispensing and the legislators would like to see this addressed. Mr. O’Malley stated that Labor Proposal No. 3 and Management Proposal No. 10 cover physician dispensing of prescription drugs.

    The Council is encouraged to review Section 102.17(4), Stats, to be sure the Wisconsin statute of limitations provisions are reasonable and consistent with other states. Mr. O’Malley stated Management Proposal No.4 addresses this concern and under this proposal the statute of limitations will be reduced to three years.

    Under current law small employers that do not receive an experience rating modification are at a disadvantage of receiving adjustments for a no loss claim year. Other states have created a premium incentive program for small employers and the legislators would like the Council to consider establishing such a program. Mr. Bernard Rosauer, President of the Wisconsin Compensation Bureau, this is a change that would need to be made by the Wisconsin Compensation Rating Bureau (WCRB) and would need to be approved by the Rating Committee and the Governing Board. Whatever premium discounts are given to some employers will need to be made up for by other employers. Mr. Ginsburg stated that in states with this kind of program, typically there is a five percent credit if that employer has no injuries in the preceding three years and a five percent premium debit if an employer has two or more injuries in a year. Mr. Rosauer stated the WCRB is willing to look into this proposal.

    Since employees may not be entirely truthful when it comes to the condition of an injury the Council is encouraged to look at the definition of fraud in s.943.395, Stats, to ensure it is applicable to circumstances that may arise in worker’s compensation cases. If this definition of fraud is not applicable the Council is encouraged to create a suitable definition with similar penalties in Chapter 102, Stats.

    Many other states have requirements for insurance forms, including checks issued by insurers, contain a warning to employees that insurance fraud is a crime, and the Council may want to consider adopting this. Mr. Metcalf stated that the Office of the Commissioner of Insurance (OCI) has jurisdiction over this proposal and the Department will discuss this proposal with OCI.

    The Council is encouraged to work with the Health Care Provider Advisory Committee to update Wisconsin’s guidelines relating to opioid treatments and the abuse and overuse of opioids of some injured workers.

    When fraud cases are forwarded from the Department of Workforce Development to local prosecutors, follow-up and prosecution seems to be sparse, and other agencies such as the Department of Justice (DOJ) or the Office of the Commissioner of Insurance (OCI) should be given the ability to prosecute these cases as well. Mr. O’Malley stated there have been discussions with the DOJ about prosecuting fraudulent worker’s compensation cases and it may be an option for the assistant attorneys general to assume prosecution of these cases.

    The Council may want to encourage greater electronic information coordination between the Worker’s Compensation Division and other state agencies to identify wages reported earned by employees receiving compensation for permanent total disability, and agreements with the Department of Revenue and the Unemployment Insurance Division may help in this endeavor.

    The Council should consider codifying training for administrative law judges to ensure a fair and honest court process. Mr. O’Malley explained that for many years the Department has provided an extensive training program for newly hired administrative law judges. The training program includes reading and discussing Ch. 102, Stats, and DWD 80 and 81 of the Wisconsin Administrative Code, briefing and discussing important appellate court decisions, training on wage and benefits computations, office procedures and conducting hearings.

    Under DWD 80.03(1) (c) of the Wisconsin Administrative Code the Department must sign off on any employer/employee compromise agreement concerning an employer’s liability. The Council should provide greater clarification in statute or rule to interested parties as to what factors the Department considers in approving compromise agreements.

  4. Correspondence: Mr. O’Malley reviewed the correspondence received by the WCAC since the last meeting.

    Two documents from the Labor and Industry Review Commission (LIRC) were received that contained three proposed legislative changes to Chapter 102, Stats.

    The first proposal is to amend Section 102.18(3), Stats., to reflect that petitions for review must only be filed at LIRC and to clarify the standard for accepting late appeals. The second proposal is to amend Section 102.18(4) (a),Stats., to clarify the time period to set aside an order begins to run from the date of LIRC’s order. The third proposal is in response to the decision by the Wisconsin Supreme Court in Xcel Energy Services, Inc. v. LIRC, and the proposal is to amend Section 102.23(1) (a), Stats., to clarify who must be named as a party in judicial review actions.

    Staff from LIRC will be in attendance at the next meeting to explain these proposed legislative changes and to answer questions

  5. Permanent Total Disability Study Committee: Mr. Aiello updated the progress of the Permanent Total Disability Committee. Out of 273 total claims where compensation for permanent total disability was claimed, 194 claims have been closed. Compensation for permanent total disability was paid in four of these claims. Hearings were held in 18 cases and continued hearings were scheduled in nine cases. Pre-hearing conferences were held in three cases. Seven cases were appealed to the Labor and Industry Review Commission (LIRC).164 cases have settled without a hearing. From 1994 to date the Department has studied the number of claims where permanent total disability has been paid. During this period there has been an average of 34 new permanent total disability claims paid per year.

  6. SB276 & AB358 relating to exclusion of Cottage Industries from coverage under worker's compensation and unemployment insurance laws: Mr. Beiriger stated he was inclined for employers to have coverage since there is some danger to employers with this bill. It is important to make sure that employers are aware of the danger. If this bill is enacted into law, there may be some cost savings in the short run but there will be unintended consequences for employers.

  7. Health Care Liaisons Report: Mr. Mark Grapentine, from the Wisconsin Medical Society, Ms. Laura Leitch, from the Wisconsin Hospital Association, Mr. Thomas Moore, from the Wisconsin Chiropractic Association and Ms. Annie Reinhard, from the Wisconsin Physical Therapy Association appeared before the Council to give their report.

    Mr. Grapentine expressed thanks to the Council on behalf of the health care liaisons for granting additional time to submit their proposals. He also expressed thanks to Mr. Bernard Rosauer, President of the Wisconsin Compensation Rating Bureau (WCRB), for providing the data requested by the health care liaisons. Mr. Grapentine stated the health care liaisons have been meeting a great deal to work on their proposals and will have the proposals available to present to the Council at the November 12th, 2013 meeting. Mr. Grapentine also expressed his thanks on behalf of the health care liaisons to the legislators. Mr. Grapentine stated the health care liaisons were not prepared to discuss the specifics of their proposals at this meeting but they will be ready to discuss their proposals with the Council at the meeting next month.

    Mr. Beiriger expressed concern that it may be too late if the health care liaisons did not present their proposals until the next meeting. Mr. Beiriger stated the Council was operating on a tight time line to complete the agreed upon bill.

    Mr. Moore stated the health care liaisons are aware of what the Council is requesting and were working on four competing ideas. Mr. Beiriger stated that it is important for the health care liaisons to deliver their proposals before the next meeting because four months from now the legislative session will be over. Mr. Beiriger requested the health care liaisons to deliver their proposals a week to ten days before the next meeting. Ms. Bloomingdale stated the Labor representatives of the Council believed the health care liaisons would present their proposals at the meeting today, and that the Labor representatives are looking forward to working on the issues. Mr. Grapentine stated the WCRB provided its data late last week and the health care liaisons need time to review the data because they want to do things right.

  8. Other Council Business: Mr. Kent inquired about appointments to the Council for the members whose terms have ended. Mr. Kent stated there could be a legal problem with finalizing a bill if 70% of the Council members do not have current appointments. Mr. Metcalf stated that he will discuss appointments to the Council with the Department of Workforce Development Secretary as soon as possible.

  9. Adjournment:   Motion by Mr. Beiriger, seconded by Ms. Bloomingdale to go in to caucus and then to adjourn. The motion carried unanimously and the meeting was adjourned at approximately 11:15 a.m.

Next Meeting November 12th, 2013
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