Worker's Compensation Advisory Council
Council on Worker’s Compensation
Crowne Plaza
Madison, Wisconsin
February 13, 2009

Members present:   Mr. Beiriger, Mr. Brand, Mr. Buchen, Mr. Collingwood, Ms. Connor (for Mr. Scott), Ms. Huntley-Cooper, Mr. Kent, Mr. Newby, Ms. Nugent, Mr. Olson, Ms. Pehler, Mr. Redman, Mr. Schwanda

Excused:   Ms. Vetter

Absent: 

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

  1. Call to Order/Introductions: Ms. Huntley-Cooper convened the Worker’s Compensation Advisory Council (WCAC) meeting at approximately 09:30 a.m. in accordance with Wisconsin’s open meetings law. WCAC members, staff and members of the audience introduced themselves.
  2. Minutes: The minutes of the January 12, 2009 meeting were unanimously approved with correction with respect to the absence of Mr. Newby and Mr. Schwanda.
  3. Presentation by Dr. Maja Jurisic:  Dr. Jurisic presented information on “The 60 Summits Project”, sponsored in part by the Wisconsin Consortium on Promoting Stay at Work and Return to Work.  At the Wisconsin Summit in October 2008, ideas were presented on opportunities to improve return to work efforts, preventing needless work disability, and a disability prevention model.  The next summit meeting is set for February 19th.  The Wisconsin Consortium is suggesting that the WCAC study the COHE (Center of Occupational Health and Education) project in the state of Washington.  The COHE project involves best practices for reducing disability through training and financial incentives for treating practitioners.  Through this project, claims have been paid faster with a decrease in appeals and disability periods. 
     
  4.  
  5. Correspondence: Mr. Conway reviewed the correspondence from Ms. Caroline Hindes. Her husband suffered a head injury at work and subsequently died in an automobile accident. Ms. Hindes is requesting a statutory change allowing her to sue the employer for wrongful death resulting from negligence of a co-worker. Such a suit is now barred because worker’s compensation is the exclusive remedy. Mr. O’Malley explained that under Wis. Stat. §102.03(2), the employer and co-employees are protected from a lawsuit brought by the employee for a work-related injury, with three exceptions: intentional assault by a co-employee, negligent operation of a motor vehicle not owned or leased by the employer, or in the case of liability of a governmental unit to pay judgments against employees under a collective bargaining agreement or local ordinance. There is no case law exception in Wisconsin to the exclusive remedy provision due to gross negligence. Ms. Hindes’ suggestion will be added to the public proposals.

    Mr. Conway asked the WCAC members to update their biographical information.
    Mr. Newby indicated that he will be gone for a few weeks beginning the end of March and Mr. Kent will assume the role as Labor spokesman in his absence
  6. New Business: Mr. O’Malley advised that the Unemployment Insurance (UI) Division’s proposal to amend Wis. Stat. §102.23(1) regarding appeals of orders from the Labor and Industry Review Commission to circuit court has been withdrawn. Instead, UI proposes to amend Wis. Stat. §108.10(4) to cross-reference the statutory provisions regarding appeals.

    Mr. O’Malley indicated he spoke with Mr. Malaise at the Legislative Reference Bureau regarding department concerns over the pending court of appeals case challenging the constitutionality of the 2006 amendments to Wis. Stat. §102.17(4). The circuit court in Fond du Lac County found the retroactive application of the statute unconstitutional. The Department of Justice has advised the Department that if the statute is declared unconstitutional, this may result in a situation where employees would have no remedy for barred traumatic injuries. The WCD will include a contingent amendment in the final department proposals to provide that benefits for barred traumatic injuries will once again be paid by the Work Injury Supplemental Benefit Fund in the event the statute is declared unconstitutional. The WCD will provide copies of the LIRC and circuit court decisions in the Liska case to the WCAC along with a summary of the circuit court decision.

    Mr. O’Malley advised that the U.S. Congress is concerned with worker’s compensation issues at the state level and it is convening another National Commission on Worker’s Compensation Laws. The last national study was 35 years ago and the commission’s report contained about 30 different recommendations to states to modify their worker’s compensation laws, most of which concerned benefit rates and coverage of workers.
  7. Unfinished Business: Labor provided the following reaction to the public proposals (the numbers below correspond to the proposal numbers):

    1. 1. No; 2. Okay; 3. Worker’s compensation attorneys should make a proposal if they want a change.
    2. Labor has questions.
    3. Okay
    4. 1. This is similar to a Labor proposal; 2 & 3 Labor that the WCD conduct a review of other states on continuation of health insurance coverage during a period of disability and establishment of pension funds and the cost of such a provision; 4. Labor has questions; 5. No.
    5. Okay
    6. 1. No; 2. Already done by the department; 3. Okay; 4. No; 5. No; 6. No; 7. No; 8. Yes.
    7. 1. Okay; 2. Labor has questions.

    Management had no recommendations on the public proposals.

    Labor provided the following recommendations on the department proposals (the numbers below correspond to the proposal numbers):

    1. Okay
    2. Okay
    3. Okay
    4. Yes
    5. Okay
    6. No
    7. Okay
    8. Okay
    9. Okay
    10. Okay
    11. Okay
    12. Okay
    13. Labor has questions
    14. Okay.

    Management had no recommendations with respect to the department proposals.
    Labor wants a simultaneous exchange of proposals, so they will provide their proposals at the next meeting. Labor and Management may send their proposals to each other prior to the next meeting to facilitate rapid and smooth negotiations to reduce the time for the agreed bill process.
  8. Adjournment: Discussion on all agenda items concluded and the meeting was adjourned at approximately 11:40 a.m.

    Future meeting dates: March 13th, March 27th, April 13th, May 8th and June 5th. All meetings are scheduled to be held at the Crowne Plaza in Madison with the exception of the May 8th meeting which is scheduled at the Clarion in Madison.