Worker's Compensation Advisory Council
Council on Worker’s Compensation
Crowne Plaza
Madison, Wisconsin
November 8, 2010

Members present:   Mr. Beiriger, Ms. Bloomingdale, Mr. Brand, Mr. Buchen, Mr. Collingwood, Ms. Huntley-Cooper, Mr. Kent, Mr. Newby (retiring member), Ms. Nugent, Mr. Olson, Mr. Redman, Mr. Schwanda, Ms. Thomas, and Ms. Vetter (retiring member)

Excused:    Ms. Connor, Ms. Pehler

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

  1. Call to Order/Introductions: Ms. Huntley-Cooper convened the Worker’s Compensation Advisory Council (WCAC) meeting via teleconference at approximately 10:30 a.m. in accordance with Wisconsin’s open meetings law.  WCAC members, staff and members of the audience introduced themselves. Ms. Huntley-Cooper introduced and welcomed Ms. Stephanie Bloomingdale and Ms. Monica Thomas as new members of the WCAC replacing retiring members Mr. Newby and Ms. Vetter. 
  2. Minutes: The minutes of the January 29, 2010 meeting were unanimously approved without correction.
  3. Meeting Schedule: The members agreed on the following tentative meeting schedule:  January 10, 2011, February 14, 2011, March 14, 2011 and April 11, 2011.   

    Mr. Newby questioned the continuing meetings of the Healthcare Providers Advisory Committee, as the committee has no continuing charge from the WCAC.  The committee is in existence to monitor the Medical Treatment Guidelines.  Mr. O’Malley responded that the committee did have one minor proposed change to the guidelines concerning palliative treatment and the repeal of one minor paragraph in the guidelines.  The department will offer the suggested changes as part of the department’s proposals.  The statutory authority for the Healthcare Providers Advisory Committee is contained in Wis. Stat. §102.16(2m)(g).  Mr. Newby requested that a list of the committee membership and the committee’s charge be sent to all the WCAC members.
  4. Hearing Date:  The public hearing will be held on December 13, 2010 at the University of Wisconsin Pyle Center in Madison with videoconferencing from Milwaukee, Green Bay, Eau Claire and La Crosse.  Ms. Huntley-Cooper advised that the Worker’s Compensation Division (WCD) staff is available to provide an orientation for new WCAC members.

  5. Legislative Timeline:  The department has prepared its proposals.  The WCAC requested that the department present its proposals and proposals from the public at the next meeting.  At the following meeting, Labor and Management plan to present their proposals.
  6. Remarks:  DWD Secretary Roberta Gassman presented Mr. Newby and Ms. Vetter with certificates in honor of their service as Labor representatives to the WCAC.  Sec. Gassman recognized both Mr. Newby and Ms. Vetter as accomplished leaders for Labor.  On behalf of Management, Mr. Buchen congratulated Mr. Newby and Ms. Vetter on their retirement and expressed gratitude for their service on the WCAC.
  7. Correspondence:  Mr. Conway reported the WCD received a packet from Mr. John Reif concerning his minor son who was fatally injured at work.  Mr. Reif is suggesting that the exclusive remedy provision of the statutes be amended to allow for a civil action against the employer.  The WCD has responded in the past to Mr. Reif and Sen. Kedzie.  Their suggestions for a statutory amendment will be included in the public proposals.   

    Attorney Edmondson authored a letter expressing concern that the recording of hearings by parties has not yet been adopted as policy in the WCD.  The WCD will establish the process of recording of hearings by parties in an administrative rule.  Mr. O’Malley explained that absent an administrative rule, it would be difficult to enforce a requirement such as Attorney Edmondson proposes.  The audio-recording of hearings is included in the administrative rules that are being prepared by the WCD.  The anticipated effective date is July 1, 2011.  

    Mr. Carr sent in correspondence again expressing concern with the process of appointment of WCAC members and their terms.  His comments will be included in the public proposals.
  8. Division Reports:  Mr. Aiello updated the WCAC on CMS (Center for Medicare and Medicaid Services) reporting requirements and the financial status of the Work Injury Supplemental Benefit Fund (WISBF).  The department is a Required Reporting Entity (RRE) for CMS because the Uninsured Employers Fund (UEF), Work Injury Supplemental Benefit Fund (WISBF) and the Self-insured Employers Liability Fund (SIELF) all pay medical expenses for work injuries.  Deadlines for submission of data to CMS were extended last year, but we have been submitting data since April 2010.  The penalties for failure to report data on Medicare recipients is $1000 per day for each day the claim is not reported with data accepted by CMS only on quarterly basis.  The department contracts with a third party to submit query and input data to CMS.  Of the 456 claimants that have been submitted for query, 93 have been determined to be Medicare beneficiaries.   

    Mr. Aiello handed out and reviewed a synopsis on the WISBF that includes information on funding sources, benefits paid and fund balance.  The supplemental benefit payment reimbursements to carriers are paid out of the WISBF.  The WISBF balance on November 3, 2010 was $8.8 million.  However, the requests for reimbursement for supplemental benefit payments will not be received and processed until May or June of 2011.  Expenses have exceeded revenues for the last three fiscal years.   The department requested an estimate of exposure for barred traumatic and occupational disease claims from the Department of Justice.  The estimate provided was $2.2 million, which did not include indemnity payments or Second Injury Fund Claims.  The trend in expenditures exceeding revenues is unsustainable and will need to be addressed by the WCAC.   

    Mr. O’Malley reported that the Society Insurance v. LIRC decision was issued by the Wisconsin Supreme Court in July 2010.  The court found that the retroactive application of the statute requiring the insurance carriers to pay barred traumatic claims was unconstitutional.   The Department of Justice defends claims against the WISBF and has interpreted the decision to result in two categories of cases: those where the statute of limitations expired before April 1, 2006; and those where it expired after April 1, 2006.  For the later group of cases, the decision does not address the constitutionality of the retroactive application of the statutory amendment.  The vast majority of pending cases fall into the first group of cases and the WISBF is responsible for payment of benefits.  Some of these claims are quite large and involve total hip or knee replacements.  For dates of injury April 1, 2006 forward the carrier remains responsible for payment; therefore, beginning April 1, 2018 the employer and carrier are liable.  

    There were two bills that amended statutes in Chapter 102 that did not go through the WCAC agreed bill process.  2009 WI Act 288 (effective May 27, 2010) and 2009 WI Act 292 (effective January 1, 2011) provide for statutory changes concerning misclassification of workers in construction-related industries and provide for investigation of employers, levying of fines, forfeitures and stop work orders against employers who are not complying with state laws involving unemployment insurance and worker’s compensation.  

    Ms. Knutson reported that currently cases that are ready for hearing are scheduled on average within three months, with no complaints from legislators concerning the wait time for hearings.  Currently 1,575 cases are waiting for hearing compared with 6,000 prior to the initiation of the Certification of Readiness process for litigated cases.  The number of health cost disputes continues to rise with the estimated number of disputes for calendar year 2010 projected to increase to 3,800.   Currently there are two staff members that process the disputes and the department is anticipating hiring a third position before the end of the year.  Claims against the Second Injury Fund are increasing and in some cases involve new theories of recovery. 

  9. New Business:  None.
  10. Adjournment: Discussion on all agenda items concluded and the meeting was adjourned at approximately 1:50 p.m.

    Next Meeting:   Monday, January 10, 2011
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