Council on Worker's Compensation
Meeting Minutes
GEF-1 Building
Madison, Wisconsin
November 12 , 2013

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

 Staff present: Mr. Aiello, Mr. Ezalareb, Mr. Krueger, 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: Ms. Bloomingdale moved to approve the minutes of the October 15th, 2013 meeting. Mr. Beiriger seconded the motion. The minutes were unanimously approved

  3. Labor & Industry Review Commission LIRC proposed legislative changes to CH. 102: Tracey Schwalbe, LIRC General Counsel, Bill Jordahl, LIRC Commissioner, and Jeff Shampo, LIRC Attorney, appeared at the meeting.

    Ms. Schwalbe stated the Labor and Industry Review Commission (LIRC) handles appeals for worker's compensation cases, unemployment insurance cases and public accommodation cases with the Equal Rights Division.  LIRC receives appeals on about 200 worker's compensation cases per year. LIRC receives appeals on about 100 cases from the Equal Rights Division and about 3,000 cases from the Unemployment Insurance Division. LIRC has three commissioners who are appointed by the Governor and serve staggered six year terms.

    LIRC does not generally recommend legislative changes. LIRC is recommending four legislative changes at this time. Ms. Schwalbe provided a handout that summarized the proposed law changes for worker's compensation suggested by LIRC.

    The first proposed change results from the Wisconsin Supreme Court's decision in Xcel Energy Services, Inc. v. LIRC. In that case there was a procedural issue that came up because the plaintiff did not name the right parties on the summons and complaint, and there were other issues relating to the merits of the case. LIRC proposes to amend s.102.23, Stats. to clarify that the party who files an appeal of a LIRC decision to court shall be named the plaintiff, and shall name as defendants LIRC and those persons or entities identified by LIRC in its decision as necessary to be named in the court appeal. If the plaintiff names LIRC and those persons or entities identified by LIRC, the case would not be dismissed for not naming a proper party. LIRC's proposed change also provides that a court may join other parties not identified by LIRC if the court determines the other party is necessary and would not unduly delay the case.

    LIRC created a work group to look at the appeals process and the work group came up with three other procedural changes.

    The first change will require worker's compensation appeals to be filed at the LIRC. LIRC proposes to amend s. 102.18 (3), Stats., to provide that appeals will be filed only with LIRC. Under current law appeals of worker's compensation cases may be filed with either the Department of Workforce Development or LIRC. The reason for this proposal is to streamline the appeals process so that only one office is receiving appeals and LIRC has better control over its workload from the time of the appeal.

    LIRC also proposes to amend s. 102.18 (3), Stats., to clarify the language of the standard for LIRC to consider in reviewing late appeals. The standard will remain the same and the petition for review must be late for a reason beyond the petitioner's control before LIRC can entertain an appeal.

    LIRC proposes to amend s. 102.18 (4) (a), Stats., to clarify the time period for the appeal runs from the date of LIRC's decision. The language proposed by LIRC will clarify that the time during which LIRC may set aside its decision for further consideration runs from the date of the LIRC decision. This proposal does not change the amount of time that LIRC has to set aside decisions and this change leaves open the option for LIRC to send decisions to the parties other than by mail in the future.

    Ms. Schwalbe stated that these proposals have also been presented to the Unemployment Insurance Advisory Council. LIRC will also be looking at the rules process to update procedural rules to make the review process go better

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

    A letter dated October 29th, 2013 was received from Ms. Jennifer Maurer, Director of Government Affairs, Automated HealthCare Solutions (AHCS) recommending to the extent the WCAC is considering a fee schedule for physician dispensed medications, AHCS supports the adoption of a reasonable fee schedule that does not go so far as to discourage or restrict physicians' ability to continue dispensing medication to their injured workers. AHCS strongly recommends that any fee schedule language under consideration by WCAC mirror Florida Senate Bill 662 which limits reimbursement for repackaged prescription medications dispensed by a practitioner to 112.5 percent of the original manufacturer's average wholesale price (AWP), plus an $8.00 dispensing fee, as of July 1, 2013.

    An e-mail message dated November 11th, 2013 from 25 Wisconsin businesses was received that stressed the importance of bringing down the cost of worker's compensation in Wisconsin. The WCAC was requested to put forward a proposal this session that will effectively bring down worker's compensation related medical prices and that the legislature works quickly to pass it in to law.

    A letter dated November 5th, 2013 from the Health Care Liaisons to the WCAC was received that contained references to a number of studies that showed the strengths of the Wisconsin worker's compensation system and recommended some legislative changes to the WCAC.

    1. Health care service prices for payers will be discounted for payers that meet administrative and payment standards. For claims paid within 30 days, 10 percent will be taken off billed charges. For claims paid within 45 days, 5 percent will be taken off billed charges.
    2. Require insurers to move toward an electronic claims system which can help facilitate the ability to make payments within the suggested time targets, and that insurers and self-funded plans must be able to accept electronic claims submissions and be able to make electronic claims payments by January 1, 2016.
    3. Payers will be allowed to reduce health care provider's bills that are more than 1.2 standard deviations above the mean charge.
    4. The Department of Workforce Development should create a robust database for calculating the 1.2 standard deviations above the mean charge using data reported to the Worker's Compensation Rating Bureau, the Wisconsin Health Information Organization and the WHA Information Center.
    5. Physician dispensing of pharmaceuticals should be restricted as contained in proposals from Labor and Management. However, the WCAC should be watchful of any access issues that may develop with this change.
    6. A rate of $26.00 should be established as the rate for providing electronic copies of medical records requested by injured employees.
    7. The WCAC should adopt Department's Proposal Number 4 to amend DWD 80.72 and DWD 81 of the Wisconsin Administrative Code to reflect the national implementation of ICD-10 codes as of October 1, 2014.
    8. Many of the health care related suggestions submitted by the Legislators are sound and should become the Health Care Providers Advisory Committee's agenda for their quarterly meetings. The HCPAC should submit recommendations in the following areas for consideration. Review the treatment guidelines in DWD 81 of the Wisconsin Administrative Code, review the disability ratings in DWD 80.32 of the Wisconsin Administrative Code, conduct a thorough examination of opioid use and prescribing practices, make recommendations on compounding drugs and make recommendations about causation and return to work assessments.
  5. Other Council Business: Motion by Mr. Beiriger, seconded by Ms. Bloomingdale to go in to closed caucus. The motion carried unanimously and the Labor and Management representatives went in to closed caucus at approximately 10:30 a.m.

    The WCAC reconvened in open session at approximately 3:15 p.m.

    Mr. Beiriger stated that he and the other members of the WCAC appreciate everyone's patience during the deliberations for this agreed upon bill. There is so much more to cover this session than in recent sessions. Employers, employees, Department, LIRC, health care providers, and legislators have all presented proposals for the WCAC to consider. The WCAC has tried to be respectful of all information and has tried to take all of the information into consideration. Today was the first real chance that the WCAC members had to discuss all of the issues. Progress at reaching an agreed upon bill is being made.

    Motion by Mr. Beiriger, seconded by Ms. Bloomingdale, to accept the proposals for legislative change from LIRC and the Department. The motion carried unanimously.

  6. Adjournment: Motion by Mr. Beiriger, seconded by Ms. Bloomingdale to adjourn.The motion carried unanimously and the meeting was adjourned at approximately 3:25 p.m

    Next Meeting December 3rd, 2013
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