Worker's Compensation Advisory Council

Council on Worker’s Compensation
Meeting Minutes
Madison, Wisconsin
April 5, 2007

Members present:  Ms. Bean, Mr. Beiriger, Mr. Brand, Mr. Buchen, Mr. Furley, Ms. Huntley-Cooper, Mr. Kent, Mr. Newby, Mr. Olson, Mr. Redman, Mr. Scott, Mr. Schimke, Mr. Shaver, Ms. Vetter


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

  1. Call to Order/Introductions: Ms. Huntley-Cooper convened the Worker’s Compensation Advisory Council (WCAC) meeting at 10:00 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 February 28, 2007 meeting were approved as distributed.
  3. Health Care Providers Advisory Committee Report (DWD 81): Mr. O’Malley reported a public hearing on the proposed changes to Wis. Admin. Code Chap. 80 and the new proposed Chap. 81, was held on March 21, 2007 via videoconference from UW Madison Pyle Center. Videoconference locations included Eau Claire, Green Bay, La Crosse, Superior and Milwaukee. Four individuals offered comments during the three-hour public hearing. The projected effective date for the rule changes is August 1, 2007. The draft Medical Treatment Guidelines came back from the Legislative Council with suggested drafting convention changes. Once the changes are made, the Medical Treatment Guidelines will be available on the WCD’s website with paper copies provided to the WCAC members for the next meeting.
  4. Permanent Total Disability Committee Report: Ms. Knutson reported the committee had not met since the last meeting on January 23, 2007. There have been no further for information from the PTD Committee or the WCAC. At this time there are no future meeting dates planned.
  5. Other Reports: Mr. Krueger reported on the Loggers Committee. The Wisconsin Compensation Rating Bureau (WCRB) is in the process of creating a mechanized logging class, which may be effective by 2008 or 2009. A speaker will appear at the next WCAC meeting to present a review of a group self-insurance proposal for loggers.

    Ms. Knutson provided information on the litigated case backlog. The total number of pending applications for hearing in ready status as of the end of February 2007 was 5804, which includes over 1000 cases that were scheduled at that time for a hearing, prehearing conference, or settlement conference. Data will not be available for the month of March 2007 for a few more days. The WCD’s IT staff that handles for data just returned from maternity leave. Additional information requested from the WCAC will be available for the next meeting. Mr. Shaver inquired if the WCD was considering proposing a statutory change requiring a certificate of readiness. Ms. Huntley-Cooper explained that the WCD will try and implement a certification of readiness process as a matter of policy; no statutory change is proposed at this point. Mr. O’Malley explained that the WCD has some discretion in scheduling cases. No one has used the joint certificate of readiness process that has been in place for almost one year. The new process would involve an applicant’s certification of readiness. Mr. Kent indicated that historically the WCAC has been involved in the analysis of pending litigated cases and has proposed the addition of administrative law judges when necessary to handle an increase in caseload. Mr. O’Malley commented that the spike in the number of litigated pending cases was due to ALJ vacancies. The number of cases the WCD currently has scheduled is not as high as it needs to be due to staffing issues in the hearings unit the last four years. The goal is to have 1500 cases scheduled at any point in time. The historic lowest point is only 600 cases scheduled.

    Ms. Knutson reported that some members of the Attorney Fee Discussion Group were proposing statutory and administrative rule changes. ALJ Wally Thurow authored a memorandum on the proposed changes discussed by the group. There is some concern regarding the constitutionality of the proposed changes. The attorney members of the group recommend that the $100 maximum fee in cases where there is no dispute should be increased to $250 and that the 20% limitation on attorney’s fees be waived in penalty claims. Mr. Scott indicated the group would schedule another meeting to further discuss the proposals and would report back to the WCAC. Mr. Olson is the other WCAC member who is participating in the discussion group.
  6. Correspondence: Mr. O’Malley reported the department received an inquiry from Senator Risser regarding the lack of a cost of living adjustment for permanent total disability benefits. Ms. Huntley-Cooper responded on behalf of the WCAC that a committee has been formed to study the matter.

    The department received a letter from Linda Devitt in support of a recommendation to repeal the employer’s right to opt out of Christian Science treatment (i.e. referenced in Wis. Stat. §§102.42 (1) and 102.42(4)).

    Norman Bair sent in a letter in support of Christian Science treatment, as did Thomas Mangelsdorf.

    Dr. Goodman sent in a letter and an article from the Journal of Occupational and Environmental Medicine regarding return to work and medical management of worker’s compensation injuries.
    Mr. Shaver indicated the WCAC members had received electronic correspondence from Jason Lien regarding his concern that health insurance premiums are not paid by the employer during his work injury period. Ms. Huntley-Cooper indicated that the WCD had not yet responded to this inquiry. If issues concern an individual claim, the WCD claims staff addresses the issues directly with the individual.

    Mr. O’Malley advised that two bills are pending in the State Legislature that impact worker’s compensation, but they have not yet been introduced. Rep. Gary Bies is sponsoring a bill to create a new section, §102.03(6), to create a presumption for firefighters that heart, cerebrovascular accident (i.e. stroke) and respiratory disease is work-related. This presumption would include volunteer firefighters. The language mirrors the presumption currently set forth in Wis. Stat. Chap. 891 with the exception that it includes cerebrovascular accidents and does not include minimum working hours as a firefighter. The presumptions in Chapter 891 apply to duty disability benefits administered by the Department of Employee Trust Funds, and do not apply to worker’s compensation benefits. Currently Wis. Stat. Chap. 102 does not contain any presumptions for benefit eligibility purposes. Mr. Newby questioned whether Chapter 102 is the appropriate place for this amendment to include volunteer firefighters in the presumption. There needs to be more discussion on the length of service and exposure to occupational hazards to arrive at a reasonable presumption of work-relatedness for heart and respiratory conditions. Mr. Kent commented that the issue of medically documented increased incidence of disease for firefighters, including volunteers, need to be considered, including epidemiological research. The WCAC requested that the WCD refer the matter to interested members of the Health Care Provider Advisory Committee for review and report back to the WCAC at the next meeting. The WCAC requested that WCD send a letter to the bill sponsor, copy to the chair of the Labor Committee, indicating that the bill is under review by the WCAC and its subcommittee. The role of the Health Care Provider Committee was confirmed by the WCAC. If there is an interest from members of the committee to take on additional tasks such as the firefighter’s issue, individual members may do so under a separate committee structure or through their medical liaison agencies.

    Rep. Gary Sherman is sponsoring a bill to amend Wis. Stat. §102.27(2) to permit payment of attorney’s fees on the reimbursement to governmental units for public assistance benefits for medical costs or living expenses related to the worker’s compensation claim. Mr. Buchen suggested that the Attorney Fee Discussion group review this proposed legislation in conjunction with their overall review of attorney compensation in worker’s compensation cases. Under Wis. Stat. §102.14, the WCAC is charged with providing comment to the Legislature on any pending bill that impacts Chapter 102. The WCAC requested that the WCD send a letter to the bill sponsor, with a copy to the chair of the Labor Committee, indicating that the bill has been referred to the Attorney Fee Discussion Group and request that the bill not be introduced until the WCAC has considered the Attorney Fee Discussion Group’s recommendation.
  7. Old Business:  Mr. Newby commented that at the last meeting, Management requested more time to submit a medical fee schedule proposal. A medical fee schedule has the potential for unintended consequences and careful research on any projected results is needed. While the Worker’s Compensation Research Institute’s data shows considerably higher costs for medical procedures, the total medical costs in Wisconsin for worker’s compensation claims is not out of line. Mr. Beiriger responded that Management realizes they are suggesting a major change and they need to present a concrete proposal that is understandable. In looking at benefit payment trends, the proportion of benefits paid for medical expenses continues to increase. Medical costs are a major cost driver in the system and need to be addressed. Mr. Newby indicated that the most recent data indicates total medical costs are declining. Mr. Beiriger responded that Management is trying to address the rate of growth. Management’s goal is to be able to advance their proposal at the next meeting.
  8. New Business: Mr. Newby requested that the WCD obtain a Worker’s Compensation Rating Bureau report of the loss ratios for worker’s compensation over the past several years for the next meeting. The report should include the most recent data available.

    The WCAC took action on the Department’s proposals as follows (numbers refer to the Department proposal numbers as set forth in the February 1, 2007 meeting minutes):
    1. Amend §102.16(2m)(g) to delete reference to the Minnesota Rules in the promulgating authority for medical treatment guidelines. Agreed.

    2. Amend §102.29(1) to provide that the Work Injury Supplemental Benefit Fund will share in any third party settlement proceeds. Tabled.

    3. Amend §102.425(3)(a)1 to delete reference to the Blue Book, which is out of print. Agreed.

    4. Create §102.425(3)(r) and (s) to provide a dispute resolution process for pharmacy fee disputes similar to the dispute resolution process in §102.16(2) for reasonableness of fee disputes. Agreed. (A speaker from Navitus may be invited to a later meeting to present information on savings on drug purchases.)

    5. Amend §102.48(2) to require any person claiming death benefits for partial dependency to produce documentary evidence of dependency, rather than submitting testimony only. Tabled. Labor requested that the WCD redraft the language to address their concerns with requiring documentary evidence.

    6. Amend §102.64(2) to provide that the Department of Justice represents the WISBF for payments into the Fund for illegal employment of minors under §102.60. Agreed.

    7. Delete §102.65(3) which provides for reductions of payments into the WISBF when the Fund balance exceeds three times the amount paid out of the Fund the previous year. Agreed.

    8. Amend §102.80(3)(ag) to eliminate the requirement to consider incurred but not reported (IBNR) claims in calculating expected losses to the Uninsured Employers Fund (UEF). Agreed.

    In summary, there was unanimous agreement on all of the Department proposals except #2 and #5. No action was taken on the Labor or Management proposals.

  9. Adjournment:  Discussion on all agenda items concluded and the meeting was adjourned to closed caucus at approximately 2:00 p.m.

    Future meeting dates are as follows:

    Thursday, May 3, 2007
    Thursday, May 17, 2007
    Thursday May 31, 2007
    Target date for agreed bill is June 1, 2007
    Thursday June 7, 2007
    Wednesday, July 11, 2007
    Wednesday, August 1, 2007
    Thursday, September 6, 2007