Website - Division of Worker's Compensation
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Compensation Advisory Council
Council on Worker’s Compensation
April 13, 2009
Members present: Mr. Beiriger, Mr. Brand, Mr.
Collingwood, Ms. Connor (for Mr. Scott), Ms. Huntley-Cooper, Mr. Kent, Ms. Nugent, Mr. Olson, Ms. Pehler,
Mr. Redman, Mr. Schwanda, Ms. Vetter
Excused: Mr. Buchen, Mr. Newby
Staff present: Mr. Aiello, Mr. Conway, Mr. O’Malley, Ms.
Knutson, and Mr. Krueger
- Call to Order/Introductions: Ms. Huntley-Cooper convened the
Worker’s Compensation Advisory Council (WCAC) meeting at approximately 11:00
a.m. in accordance with Wisconsin’s open meetings law. WCAC members, staff
and members of the audience introduced themselves.
- Minutes: The minutes of the March 27, 2009 meeting were
unanimously approved with correction.
- Public Comment: Ms. Patricia Grillot stated that she was a
family nurse practitioner and suffers from PTSD and brain damage from her
injury. Because medical treatments for an injury may not be available until
years after the injury, she feels that a 12 year limit on payment of
benefits is unreasonable.
- Correspondence: None.
- Reports: Ms. Charlene Dwyer, Division Administrator for DWD
Division of Vocational Rehabilitation, and Mr. Manuel Lugo, Deputy Division
Administrator, provided information on eligibility for DVR services and the
DVR training grant. Regardless of the referral source, the DVR’s goal is to
maximize employment for their consumers. Consumers are screened for
eligibility based on the impact of the medical or psychological condition on
the person’s life. Due to funding limitations, eligible consumers are
categorized by severity of impairment through the order of selection
process, with the consumers having the most severe functional limitations
rated highest (category 1) served first. All other eligible consumers are
placed on a waiting list for services. An individual employment plan (IEP)
is developed for each consumer. If an IEP is developed for retraining, the
consumer is required to apply for financial aid with the post secondary
training institution. A training grant of up to $4000 per academic year from
the DVR is available to assist with payment of tuition and books when the
cost of attendance exceeds available financial aid. Training is not limited
to a two-year program. The DVR supports the lowest cost option for post
Approximately 25% of the population served have an IEP involving post
Mr. O’Malley clarified that currently employers and insurers are not liable
for the costs of tuition, books and fees for retraining plans developed by
the DVR for injured workers served by the DVR.
Ms. Huntley-Cooper informed the WCAC that the proposed Wisconsin-Minnesota
agreement includes collaboration with worker’s compensation mediation and
claims research, with Wisconsin providing assistance with data collection.
There is also a provision for a third party administrator bill review
contract for the UEF. Both governors are considering the terms of the
Ms. Knutson provided updated information on the number of litigated cases
pending that involve a constitutional challenge to the 2006 statutory
amendments involving barred traumatic claims. The Department of Justice now
estimates the number of pending cases at 36.
Mr. O’Malley reported that the Governor’s budget bill provision that allows
DWD to contract with the Department of Administration or a third party
administrator to handle claims from the Work Injury Supplemental Benefit
Fund has been removed. However, the domestic partner provisions allowing for
payment of death benefits remains in the budget bill.
Mr. O’Malley indicated that the Department was withdrawing its proposal # 15
on advice from the Department of Justice.
Ms. Huntley-Cooper indicated that the updated copy of the Department
proposals includes proposal 19 which was previously overlooked. The new
proposal involves a new administrative rule codifying the Certification of
Readiness process as it currently exists. The COR process has been running
fairly smoothly for the past 1 ½ years and has resulted in a significant
decrease in pending cases and hearing delays. Mr. Beiringer requested that
the WCD provide a copy of the current department procedures used in the COR
process. Information on the COR process will be provided at the next
Mr. O’Malley reported that the WCD had received an additional public
proposal from Attorney Edmundson that involves an examining physician for
the insurer simultaneously sending a copy of the report to the employee and
Mr. Aiello reported that the amounts paid for barred hearing loss claims was
$900,000 for fiscal year (FY) 2007 and $1.6 million for FY 2008. The number
of claimants paid in FY 2007 totaled 192, and this number increased to 301
for FY 2008.
Mr. Beiriger indicated that Management was not comfortable with approval of
Department proposal # 2 regarding referrals to the Office of the
Commissioner of Insurance. Management would like additional time to consider
Mr. Beiriger provided a handout of the new, condensed Management Proposal.
The counter-proposal does not include an amendment for payment of vocational
rehabilitation benefits. The counter-proposal is summarized as follows:
- Management proposes an increase in benefits for employees that are defined
by statute as permanently totally disabled (PTD) by raising benefit rates up
to a 6-year lag on an incremental basis with the inclusion of an index going
forward. PTD benefits would no longer be available for injured workers who
are PTD on a vocational basis. Management is willing to consider an
amendment to the statutory definition of PTD.
- Management would agree to increase the burial expense maximum to $10,000
when the employee dies as a result of the work injury.
- Management would agree to a $10 increase in the maximum PPD rate for each of
the next two years in exchange for elimination of payment of medical
expenses for hearing aids when the employee suffers no compensable hearing
loss and an amendment to Wis. Stat. §102.17(4) providing that prosthetic
devices in barred traumatic claims would only be covered if the original
prosthetic device was implanted before the statute of limitations ran on the
- Management proposes an amendment to Wis. Stat. §102.03(2) eliminating
provisions in construction contracts which transfer liability back to the
employer for any third party awards against a contractor or subcontractor on
- Management proposes to convert the current medical treatment guidelines
contained in Wis. Admin. Code ch. DWD 81, to treatment parameters to be used
for purposes of utilization review/preauthorization of treatment. Disputes
would be resolved by the department and an administrative rule would be
adopted setting forth appeal procedures. Management will be working with
medical providers to draft a proposal for the next agreed bill cycle to
address medical cost containment.
- Management proposes that all claims for bad faith be reviewed
administratively by the Department to determine if there is probable cause
to proceed to hearing.
- Management proposes that disability benefits be disallowed for incarcerated
injured workers and illegal immigrants.
Mr. Kent provided Labor’s response to Management’s counterproposal:
observed that limiting the scope of eligibility for PTD benefits would
eliminate the “odd lot” eligibility for PTD. The department finds the facts
in those cases before awarding PTD benefits. Labor cannot agree to limit PTD
benefits to those injuries defined by statute.
- Labor also has reservations on eliminating death benefits in PTD cases where
the death is not directly related to the work injury.
- Labor will not agree to link an increase in burial expense to restricting
payment only in cases where the death is directly caused by the work injury.
Labor based its proposal for increasing maximum burial expense on data
provided by the Funeral Director’s Association which indicates the average
burial base cost in 2008 was $7,328 (not including lot and headstone
- Labor does not agree with eliminating hearing aid expenses as proposed by
- Labor takes the position that increasing the maximum PPD benefit rate by $10
each year is reasonable.
- Management’s proposal regarding provisions in construction contracts should
be dealt with by employers in their contracts with other employers or
through other legislation.
- While Labor is interested in addressing the issue of rising medical costs,
Management has not offered any data to support its proposal.
- With regard to Management’s proposal on bad faith claims, Labor is
comfortable with the department’s current process of handling those claims.
An administrative law judge currently has the discretion to hold a
prehearing conference in a bad faith case prior to holding a formal hearing
on that issue.
- Labor does not agree with elimination of disability benefits for illegal
immigrants. If employers hire illegal immigrants and they are injured,
employers are obligated to provide all worker’s compensation benefits to
those workers. In addition, if a worker is incarcerated, he should not lose
entitlement to disability benefits including permanent partial disability.
- Labor takes the position that indexing PTD benefits makes sense. Mr. Kent
suggested that Management provide data to support their proposals.
New Business: None.
- Adjournment: Discussion on all agenda items concluded and the
meeting was adjourned at approximately 4:15 p.m.
Future meeting dates: May 8th (Clarion) 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.