Worker's Compensation Advisory Council

      Meeting Minutes
      Madison, Wisconsin
      July 29, 2005

      Members present: Ms. Bean, Mr. Beiriger, Mr. Brand, Mr. Buchen, Ms. Connor, Mr. Furley, Ms. Huntley-Cooper, Mr. Kent, Mr. Newby, Mr. Olson, Mr. Shaver, Ms. Vetter, and Mr. Welnak, Mr. Mikelsen for Rep. Steve Nass



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

      1. Call to Order/Introductions: Ms. Huntley-Cooper convened the Worker’s Compensation Advisory Council (WCAC) meeting in accordance with Wisconsin’s open meetings law. WCAC members, staff and members of the audience introduced themselves.

      2. Minutes: Ms. Vetter moved adoption of the minutes of the June 22, 2005 meeting; Mr. Brand seconded the motion.  The motion was unanimously approved.

      3. Correspondence: Mr. Conway reviewed two items of correspondence. Mr. Chuck Carr sent in written comments concerning benefit payments for permanently totally disabled injured workers. Medtronic recommended changes to the proposed Treatment Guidelines referencing litigation issues in Minnesota.

        Mr. O’Malley explained the proposed Treatment Guidelines would be contained in DWD 80.74. The rule would not be promulgated until the agreed bill was passed. The rulemaking process could take up to one year. Under the proposed rule, a twelve person advisory body (committee) appointed by the division administrator would review the treatment guidelines and suggest proposed updates for consideration by the WCAC. Before the committee can be appointed the enabling legislation must be enacted (i.e. proposed amendment to sec. 102.16(2m)(g)). The proposed Treatment Guidelines could be adopted as an emergency rule that would be in effect for up to 150 days. Mr. Russell Leonard, Wisconsin Chiropractic Association (WCA) commented that the WCA does not have any objection to the Treatment Guidelines as currently drafted. However the liaisons to the WCAC request that the WCAC consider an amendment providing that the liaisons will submit a list of recommended appointees for the advisory committee.

      4. Review Status of all Proposals: Mr. O’Malley reviewed a draft of the statutory changes recommended by the Health Cost Study Subcommittee regarding a pharmacy fee schedule. Additional language would provide that only a dispensing pharmacist would receive a dispensing fee, not the prescribing doctor. In addition, if the employee pays the prescription cost out-of-pocket, the employee would be reimbursed the full amount. The WCAC needs to decide the amount of the dispensing fee; a proposed range is $3 to $8 based on a survey of other states. The amount of the allowed dispensing fee would need to be reviewed periodically.

        Mr. O’Malley reviewed the statutory changes that were agreed on by the WCAC at previous meetings as follows (all references are to proposal numbers):

        Department proposals
        8. Relating to treating practitioners charging unreasonable amounts for providing a final treating practitioner’s report;

        10. Relating to payment of permanent partial disability benefits for employees who are still in the healing period and have returned to work;

        11. Employees will be limited to three advancements per year;

        12. Relating to release of confidential information to government agencies, educational institutions and non-profit research organizations;

        15. Interest will accrue at a rate of 1% per month on any unpaid forfeitures not paid within 90 days;

        16. Relating to confidentiality of worker’s compensation records maintained by the Labor and Industry Review Commission;

        17. Interest will accrue at a rate of 1% per month on any unpaid assessments not paid within 90 days;

        31 and 32. Relating to mileage reimbursement rates for injured workers for seeking medical treatment and vocational rehabilitation.

        Management proposals
        1. Relating to payment of benefits under an order while the claim is pending on appeal when the only issue is liability as between the employer and one or more insurance companies or as between several insurance companies;

        6. Provides that if an employer is misled in employing a minor illegally because of fraudulent written evidence of age presented by a minor, the employer would not owe increased compensation;

        9. Prohibits lapsing of funds from the department budget.

        Mr. O’Malley reviewed the rule changes that were agreed on by the WCAC at previous meetings as follows (all references are to proposal numbers):

        Department proposal
        18. Provide an increase in the amount of the lump sum payment in addition to the accrued benefits to be paid to an employee pursuant to a compromise agreement;

        19. Correct the department name in 80.03(1)(g)

        20. Repeal 80.15;

        21. Amend 80.39(1) to update the rule to coincide with the current statutory reference;

        22. Correct 80.49 to reference the Division of Vocational Rehabilitation;

        23. Update 80.51 to coincide with current law for the 24-hour minimum workweek for part-time employees who are part of a class;

        24. Update 80.72 to coincide with current law on database standard deviations allowable for medical charges;

        25. Update 80.50 to include reference to computation of permanent partial disability (PPD) benefits for injuries to the dominant hand;

        26. Update 80.68 to coincide with the current statutory reference;

        27. Update 80.72 to include advance practice nurse prescribers;

        28. Update 80.73 to include physician’s assistants and advance practice nurse prescribers.

        Public proposal
        The WCAC agreed to a public proposal to amend §§102.17, 102.66 and 80.32 to create a minimum PPD rating for implantation of an artificial spinal disc and to include replacement of artificial spinal discs as a specific traumatic injury for which benefit payment may be made by the Work Injury Supplemental Benefit Fund.

        Mr. O’Malley explained in reference to department proposal number 15, forfeitures under the Wisconsin Constitution are paid to the School Fund for libraries. If the statute (§102.35(1)) is changed to provide surcharges rather than forfeitures, the money paid could be diverted to other sources. The amount the department anticipated in collections per year is estimated at $200,000, with the interest estimated at $20,000.

      5. Discussion/Debate on Submitted Proposals:  The Labor and Management WCAC members met in separate closed session and reconvened with the following agreement.

        1.  Amend 102.03 to include “program, activity or event”.

        2.     The department will provide a plain language explanation to injured employees regarding how their average weekly wage was calculated on a prescribed form developed by the department.

        3. Amend 80.02(e)(4) to provide that a final medical report by a treating practitioner shall be required in all cases where surgery has been performed, even if less than 3 weeks of  temporary disability has been paid.

        4.     Amend 102.18 (1)(bp) to increase the maximum penalty for bad faith to $30,000, and to provide that if a bad faith penalty is imposed, the employee may not recover a delayed payment penalty for that same period of disability,  interest under sec. 628.46.

        5.     Clarify that medical and vocational evidence as well as reports of investigation by industrial safety specialists in the form of certified reports are admissible at hearing and may be relied on by the department in determining liability for benefits without the necessity of the expert appearing at hearing (in response to the recent Wisconsin Supreme Court decision in Gehin v. Wisconsin Group Ins. Board, No. 03-0226).

        6. Provide that when an employer has a minor illegally employed, the increased benefits (double and treble) are paid into the Work Injury Supplemental Benefit Fund rather than to the employee.

        7. Provide that the maximum wage for benefit computations is 110% of the state’s average weekly wage (make this a permanent statutory provision).

        8. Provide that temporary disability benefits will be terminated if the employee is charged by a district attorney or federal prosecutor for a crime related to the employment or if the employee violates a drug policy of the employer published and enforced prior to the injury, and codify DWD 80.47.

        9. Provide for an increase in maximum PPD benefits of $10 per year for the next four years ($252 in 2006, $262 in 2007, $272 in 2008, $282 in 2009).

        10. Maximum supplemental benefits will increase to $321 per week for injuries occurring before January 1, 1985 effective January 1, 2006, maximum benefits will increase to $338 per week for injuries occurring before January 1, 1987 effective January 1, 2007. A study committee will be established to propose ways of funding an additional increase of 3 years and future increases. The increased payments will be made out of the WISBF. The intent is to have a special bill developed by the end of 2006 to send to the legislature for passage in 2007. Insurer and self-insurer payments into the WISBF will be doubled for deaths and dismemberments to $20,000 for each effective January 1, 2006. Payments for barred traumatic injuries will be made by the insurer or self-insured employer rather the WISBF.

        11. Change the statutory language to provide that forfeitures will become surcharges, and the surcharges and interest on the surcharges will be paid to the WISBF.

        12. Professional Employer Organizations (PEOs) are required to provide the department notice of termination of coverage. A study committee will be established to review issues relating to PEOs including the definition of PEO, the process for experience rating PEOs and their clients, the employer status of PEOs and insurance policies covering PEOs and their clients.

        13. Adopt the pharmacy fee schedule with the pharmacy dispensing fee set at $3.

        14. The liaisons to the WCAC will recommend 24 candidates for 12 positions for the medical advisory committee. The division administrator will appoint 12 members from this list and two at-large seats.

        If Mr. O’Malley has any questions on the content or wording of the statutory changes referenced above, the WCAC members requested that Mr. O’Malley contact Attorney William Sachse, Jr. and Attorney David Weir, with a copy to Mr. Newby and Mr. Buchen.

        Mr. Buchen moved that the above-stated statutory and rule changes be approved and Mr. Newby seconded the motion. The above-stated statutory and rule changes were unanimously approved.

      6. Review of Correspondence: Mr. Conway reviewed three (3) letters that were received since the last meeting. The first letter was from National Association of Professional Employer Organizations (NAPEO) with language for proposed statutory amendments concerning PEOs/Employee leasing. The second letter was from Myron A. Mehlman, Ph. D. concerning benzene induced chronic myelogenous leukemia. The third letter was from Attorney John Edmondson about insurance carriers not providing adequate reasons for denying claims and proposed changes to DWD 80.02 (1)(g) of the Wisconsin Administrative Code.

      7. Adjournment:  Discussion was concluded and the meeting was adjourned at approximately 6:20 PM. The next meeting has been scheduled for July 29, 2005 beginning at 10:00 a.m. at a location to be determined in Madison.