Worker's Compensation Advisory Council
Council on Worker’s Compensation
Meeting Minutes
Madison, Wisconsin
May 17, 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. Shaver, Mr. Scott, Ms. Vetter

Excused: Mr. Schimke

Staff present:   Mr. Conway, 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 May 3, 2007 meeting were approved without corrections.
  3. Preparation on Duty Disability Benefits (s. 40.65 Wis. Stats.): Ms. Diane Poole from Employee Trust Funds (ETF) presented information on duty disability benefit eligibility, benefit payments and a brief analysis of Assembly Bill 275. Duty disability benefits are funded by contributions from employers. The contribution rates are based on the prior claims experience and the number of protected employees on the payroll of the employer. On the date of injury, the employee must be a member of the class and permanently disabled and the employee must meet one of the qualifying criteria. There is a presumption for firefighters for heart and lung disease and cancer. The presumption for heart and lung disease requires total service of at least 5 years, a pre-employment medical exam that showing no heart and lung disease at the time of hire, and minimum percentage of firefighting job duties. Volunteers are not eligible for duty disability benefits. Worker’s compensation benefits are offset if the benefits are paid on or after the date of application for duty disability benefits. If worker’s compensation benefits are paid prior to the date of application for duty disability benefits, there is no offset. The duty disability fund is doing well financially. Strokes do not qualify as a presumptive condition for duty disability benefit purposes. If AB 275 passes, ETF would likely require anyone applying for duty disability benefits under the presumption to apply for worker’s compensation benefits. This is currently not required because these claims are rarely paid under worker’s compensation. Since 1988, 53 employees have applied for duty disability benefits under the presumption. Mr. Buchen mentioned this is the first time a bill has been introduced with an effect on substantive benefits that did not proceed through the agreed bill process. No hearing has been held to date on this bill.
  4. Reports: Mr. O’Malley reported on the WCD’s litigated caseload. The WCD is currently scheduling hearings almost 12 weeks in advance. Extra staff is involved in scheduling and the WCD is paying overtime to some staff. There are approximately 1700 events scheduled at this point. The number of cases currently waiting for a formal hearing to be scheduled has dropped to 3608. The median lag time for a case to be scheduled once it is ready, is dropping as well. For new hearing applications, the average wait time will probably be 6 to 7 months assuming stable staff and number of new applications received. Mr. Newby indicated the target wait period is 6 to 8 months. Mr. Conway mentioned that the WCD would be drafting a letter to the WCAC, administrative law judges and private attorneys introducing a certification of readiness process. This will improve the WCD’s ability to be responsive to employees and schedule hearings in a timelier manner.

    Ms. Knutson reported that the Attorney Fee Discussion Group is planning to meet on May 18th. A further report will be provided to the WCAC at the next meeting.

    Mr. Conway indicated that on May 18th the WCD will be meeting via teleconference with Mr. Erik Englund and Mr. Ralph Herrmann to further discuss insurer loss ratios and the method used for projecting claims payments.

    Ms. Knutson indicated the WCD is discussing the possibility of facilitating settlement days with large insurers. This practice has been used the last couple of years by Frankenmuth Insurance with success.
  5. Correspondence: Mr. Conway reported the WCD sent a letter to the Senate and Assembly Labor Committees requesting that no action be taken on AB 275 and AB 288 until the WCAC has had the opportunity to analyze and make a recommendation on the bills.
  6. Unfinished Business: None
  7. Labor/Management Proposals:  The WCAC requested the WCD notify the Legislative Committee chairs that they are continuing to review AB 275.

    Management response to Labor Proposals:
    Management is not agreeable to Option 2 for raising permanent total disability benefit rates up to a six-year lag and including an index on future benefit rates. Management is concerned about the cost associated with the proposed change in benefit rates.
    The increased costs associated with litigation and settlement values are unknown. The real claims cost is not reflected in the benefit projections. Management is committed to addressing permanent total disability rates. Modest increases in benefits would probably not have much of an effect on litigation patterns. Labor stressed there is a serious problem with permanent total disability rates for older claims.

    Labor response to Management Proposals (number references the proposal number; numbers not mentioned were not discussed):

      1. Labor is not agreeable as this potentially takes away an employee’s civil remedy.
      3. Labor is not agreeable. Management stressed that the change in the law last session created unanticipated potential liability for the insurers/employers for knee or hip replacements initially occurring after the statute of limitations has run.
      4. Labor is not agreeable to creating a presumption of evidence in hearing loss cases.
      5. Labor agreed to eliminate payment of medical expenses in hearing loss cases with no practical hearing impairment.
      6. Labor requested further information on how often an employer has temporary workers from multiple temporary help agencies on a jobsite.
      7. Labor is not agreeable to changing the burden of proof (i.e., requiring evidence of retaliation) in unreasonable refusal to rehire claims.
      8. Labor questioned the type of discovery in unreasonable refusal to rehire cases that Management was contemplating. Labor emphasized that full discovery in worker’s compensation cases is not desirable. Management indicated this proposal was linked to number 7.
      10. Labor is not agreeable to eliminating benefits from the Second Injury Fund, indicating these employees were the most disabled.
      11. Labor is not agreeable to eliminating barred hearing loss claims.
      13. Labor is still considering the amendment to §102.60(6) to remedy the unintended consequence of requiring the employer to pay both the penalty in illegal employment of minors cases and additional compensation to the employee beyond the three-day waiting period.

    Ms. Huntley-Cooper asked the council if there was any information the Department could provide to assist the parties with their deliberations regarding the pending proposals. The council did not have any at this time.
  8. Adjournment:  Discussion on all agenda items concluded and the meeting was adjourned at approximately 3:35 p.m.

Future meeting dates are as follows:

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