Website - Division of Worker's Compensation
Email - WC Administration
Website - Division of Worker's Compensation
Email - WC Administration
Members present: Mr. Beiriger, Mr. Brand, Mr. Buchen, Ms. Connor, Mr. Furley, Mr. Gordon, Ms. Huntley-Cooper, Mr. Kent, Mr. Newby, Sen. Reynolds, Mr. Shaver, Ms. Vetter, and Mr. Welnak
Excused: Ms. Bean
Absent: Mr. Olson
Staff present: Mr. Conway, Mr. O’Malley, Mr. Shorey, Mr. Krueger, and Ms. Knutson
Medical Cost Committee –
Mr. O’Malley reported that at the meeting held in the morning, Dr. Mark
Seter discussed the American College of Occupational and Environmental
Medicine (ACOEM) guidelines/protocols and Mr. Greg Krohm discussed the
Minnesota treatment protocols. The committee’s next meeting is March 11,
2005. The committee will look at the Minnesota parameters in conjunction
with the department’s necessity of treatment dispute resolution process.
Provider groups must be involved in developing and modifying the Minnesota
protocols and health care providers would need to be trained in the new
process. Mr. O’Malley clarified that any changes to the statute or
administrative rules that are to be included in the agreed bill process
should be completed by May 1, 2005. Mr. Newby commented that unless there
is a consensus from the committee, the issue becomes a part of the agreed
bill bargaining process. The committee may continue to meeting into the
fall, past the agreed bill introduction in the legislature.
Permanent Disability Rates
– Mr. Conway reported that rather than the committee recommending a specific
proposal to the WCAC, the committee was looking at a range of options
including information on frequency of permanent total disability (PTD)
claims, the amount of benefits paid, how PTD benefits could be indexed, how
the additional benefits would be funded, an age limitation or a limitation
on the number of payments, adjustment to death benefits and redefining
permanent total disability. Costs will be assigned to the different
methodologies analyzed by the committee and the information will be
presented to the WCAC.
1. Employee leasing is excluded from the definition of a temporary help agency.
2. A new subsection is created to define a professional employer organization (PEO) and employee leasing organizations. This is the same definition that is used in the Unemployment Insurance (UI) statutes. The proposed definitions reflect the nature of these business entities in a more accurate manner. Mr. Buchen indicated there is a recent Labor and Industry Review Commission (LIRC) decision interpreting the UI statutes, specifically concerning the rate of pay set in consultation with a client. The UI Division is considering proposing a statutory amendment to address this issue.
3. The reference to employee leasing arrangements is deleted from the current statute.
4. A new section is created mirroring the language in §102.04(2m), making the terms of that statute regarding liability under §102.03 applicable to PEOs and employee leasing organization (as the liable employer for worker’s compensation injuries). The department is proposing that corporate officers be included as employees if they are included in the leasing agreement. This is permitted under current UI law.
5. This new section applies to insurance coverage for PEO and employee leasing organizations. Now the WCD is not notified when a leasing contract is terminated and employees are returned which can result in lapses in coverage. This proposal mirrors current law for giving notice of alternative employer endorsements. The notice would be provided to the Wisconsin Compensation Rating Bureau (WCRB) like any other notice of termination of coverage. The carrier provides notice to the WCRB and the notice is recorded on Spectrum (computer database) to avoid potential lapses in coverage. The cancellation of the endorsement is not effective until 30 days after the notice is received by the WCRB.
6. A new subsection is created which provides that an employer remains subject to the Worker’s Compensation Act (the Act) after entering into an agreement with a PEO or employee leasing organization that results in the discontinuance of employees for the employer. This will protect employees and avoid lapses in coverage.
7. This new section provides that the employees of a PEO or employee leasing company may not maintain an action in tort against the employer with whom they are placed in accordance with the exclusive remedy doctrine. Mr. Krueger explained there is no need for insurance coverage if there are no employees, but if the agreement is cancelled, the employer needs immediate coverage without any threshold before becoming subject to the Act.
8. This proposal is intended to remedy situations where the treating doctor charges an unreasonable amount for a final report. Only the issue of demanding prepayment is addressed. If the report is provided, the carrier can challenge the fee charged through the reasonableness of fee dispute resolution process under §102.16(2). The WCD public service specialists suggested this proposal. A final report is due when an employee has been off work for more than three weeks.
9. This proposal requires disclosure of evidence 15 days before hearing. Currently, medical evidence is served and filed 15 days prior to hearing, but other documents and information the parties intend to use at hearing including listing witnesses are not served and filed. This proposal will encourage parties to proceed to hearing and avoid surprise.
10. The issue of timely payment of permanent partial disability benefits (PPD) has been addressed previously by the WCAC. When the employee is still in the healing period, returns to work and is earning wages, PPD benefits should begin when the extent of permanent disability can be determined based on a minimum PPD rating. Payments would begin within 30 days of the earlier of the end of the hearing period or the employee’s return to work when there is no dispute on causation. If the employee is receiving temporary partial disability benefits (TPD), PPD benefits would not be paid. Temporary disability and PPD are not pay concurrently.
11. Advances on PPD are a problem and require a large amount of staff time. The proposal would limit an employee to 3 advancements per calendar year. This will discourage monthly advancement .
12. This proposal relates to the open records law and provides that the department is authorized to release confidential information to government agencies, educational institutions and non-profit research organizations when the department is satisfied that confidential information will not be re-released. The WCD is not subject to the federal HIPAA law. The WCD would have a written agreement with the organization that provides how confidential information will be protected. Currently, the WCD interfaces data with the Wisconsin Department of Health and Family Services (DHFS) regarding Medicaid payments. The employee signs a general release under DHFS regulations.
13. This proposal amends §102.31(3), providing a forfeiture (penalty) for failure by the insurance carrier or self-insured employer to answer department correspondence.
14. This proposal is related to proposal number 13. The current forfeiture amounts have been in the law since 1931.
15. This proposal provides for accrual of interest on forfeitures not paid within 90 days after billing at the rate of 1% per month. The forfeiture payments are deposited into the school fund. The department’s billing cycle would remain the same.
16. LIRC has requested that §102.33(2)(b) be amended to add that the Commission’s records are also confidential and not open to public inspection. Currently, files on appeal to LIRC can be accessed by others that are not parties to the case.
17. This proposal adds interest at a rate of 1% per month on any billed assessments not paid within 90 days after billing. There is a problem with some carriers not paying the assessments. For a few of these carriers, they have been declared insolvent and a proof of claim has been filed with the liquidator. There are 14 unpaid assessments for a total of $158,500.
18. There has not been an increase in the amount of additional benefits added to the amount of accrued benefits (for a total lump sum payment) when a compromise is ordered paid since 1982. Currently the injured worker in a compromise receives the accrued benefits plus $5,000 in a lump sum with the balance of the compromise proceeds placed in a restricted account. The department that the additional amount be increased to $10,000. This should reduce the number of for advancement.
19. This proposal is a technical amendment to DWD 80.03(1)(g) which provides a correct reference to the department of workforce development.
20. DWD 80.15 is outdated due to the amendment to §102.18(1)(e) in the last legislative session. The department therefore proposes repealing this rule.
21. The proposed amendment to DWD 80.39(1) updates the rule to coincide with the current statutory reference.
22. The proposed amendment to DWD 80.49 corrects the reference from the Department of Health and Family Services to the Division of Vocational Rehabilitation.
23. The proposed amendment to DWD 80.51(4) reflects the current law setting a 24-hour minimum workweek for part-time employees.
24. This proposed amendment to DWD 80.72 correctly defines the formula amount as the mean fee plus 1.4 standard deviations from the mean to conform to the amendment to §102.16(2)(d).
The Division has formed a work group consisting of ALJs, staff, private attorneys and Mr. Hal Bergan to review the hearing process. The group has identified problem areas, but has not yet proposed specific solutions. If there is a consensus in the group that statutory changes are necessary to effect solutions, those will be added to the department proposals at a later date.
O’Malley provided the WCAC members with a spreadsheet of proposals from the