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Council on Worker’s Compensation
September 17 , 2013
Mr. Beiriger, Ms.
Bloomingdale, Mr. Brand, Mr. Brandl, Mr. Buchen, Mr. Redman, Mr. Kent, Mr.
Metcalf, Ms. Nugent, Ms. Pehler, Mr. Ginsburg, Ms. Thomas and Mr. Schwanda
Staff present: Mr. Aiello, Mr. Ezalareb, Mr. Krueger, Mr.
Moreth, and Mr. O’Malley
- Call to Order/Introductions:
Mr. Metcalf convened the
Worker’s Compensation Advisory Council (WCAC) meeting at approximately 10:00
a.m. in accordance with Wisconsin’s
open meetings law. WCAC members,
staff and members of the audience introduced themselves.
Representative Dan Knodl:
Representative Dan Knodl, Chairman of the Assembly Committee on
Labor, attended the meeting and introduced himself and met with the
members of the WCAC.
Representative Knodl is looking forward to working with the WCAC.
Worker’s compensation has been a strong program in the past.
To keep balance in the system there is a need to review some
topics including rising medical costs.
Representative Knodl and Senator Glenn
Grothman, Chairman of the Senate Committee on Judiciary and Labor, forwarded
a letter to the Council containing a few items for the WCAC to consider.
Another letter will be sent to the WCAC which includes additional
topics for consideration.
Representative Knodl expressed his willingness to meet with the WCAC and
discuss issues raised by legislators.
Representative Knodl expressed his wishes for the WCAC to come up with a
productive and good quality bill that will go forward in the Legislature.
Representative Knodl thanked the WCAC
for allowing the health care provider liaisons an additional 30 days to
submit their proposals. There is
still time to act on a worker’s compensation agreed upon bill in the
legislature this session.
Representative Knodl stated that he would like to consider a single bill
from the WCAC this session. The
members of the WCAC thanked Representative Knodl for appearing at the
Approval of Minutes: Ms. Bloomingdale moved to approve the minutes of the June 11, 2013
meeting.Ms. Nugent seconded the
The minutes were
Correspondence: Mr. O’Malley reviewed the
correspondence received by the WCAC since the last meeting.
A letter dated June 13, 2013 was received from Mr. David Crawford from
Crawford Evaluation Group
advising that it was an employer of 14 Wisconsin employees and has
experienced cost for worker’s compensation escalate largely due to
unchecked medical costs. Mr.
Crawford stated his company joined Wisconsin Employers for Equitable
Worker’s Compensation. In the
letter Mr. Crawford urged the WCAC to continue working towards an agreed
upon bill that includes a medical fee schedule and a shorter statute of
limitations that is in line with the rest of the country.
A letter dated June 19, 2013 was received from Ms. Shari Laskowski from
Chet’s Plumbing Heating, Inc. advising that she was an employer of 20
Wisconsin employees and has experienced cost for worker’s compensation
escalate largely due to unchecked medical costs.
Ms. Laskowski stated her company joined Wisconsin Employers for
Equitable Worker’s Compensation. In the letter Ms. Laskowski urged the
WCAC to continue working towards an agreed upon bill that includes a
medical fee schedule and a shorter statute of limitations that is in
line with the rest of the country.
A letter dated August 20, 2013 was received from Representative Dan Knodl, Chairman of the Assembly Committee on Labor, and Senator Glenn
Grothman, Chairman of the Senate Committee on Judiciary and Labor,
requesting the WCAC to provide the health care provider liaisons with an
extension of the September deadline for providing their legislative
proposals to allow them up to an additional month to analyze new data
from the Wisconsin Compensation Rating Bureau.
They expressed the hope that the extension would not continue
after October 15, 2013.
Representative Knodl & Senator Grothman expressed a hope the WCAC can
continue to work on other issues facing the worker’s compensation system
including but not limited to the following:
Addressing the issue of employees providing false statements on
employment applications, and how this could affect their benefits.
Providing greater clarity for providers and businesses as to the
definition of “light duty” under section 102.43 (9) (a).
Providing greater clarity for providers and businesses as to the definition
of "light duty" inder section 102.43 (9) (a).
Strengthening reporting and accountably of fraudulent PTD claimants.
Limited consequences for the actions of workers who may injure
themselves while under the influence of a controlled substance.
Representative Knodl and Senator
Grothman also advised that in the upcoming weeks they will be providing the
WCAC with a more detailed letter of additional issues from legislators they
hope the WCAC can address in recommendations for this session.
An email message dated September 6, 2013 was received from Steve Schneider
from the American Insurance Association (AIA), Mark Johnston from the
National Association of Mutual Insurance Companies (NAMIC), Jeff Junkas from
the Property and Casualty Insurers (PCI) and Andy Franken from the Wisconsin
Insurance Alliance (WIA) recommending the adoption of a medical provider fee
schedule based on the Medicare Resource Based Relative Value System (RBRVS)
with a uniform conversion factor applicable to all covered services with no
special carve-outs. In the email
message they also urged the WCAC to adopt a pharmaceutical fee schedule for
physician dispensed drugs based upon a drug’s average wholesale price plus a
modest dispensing fee as was recently done in Illinois, Indiana and
A letter dated September 9, 2013 was received from Senator Sheila Harsdorf
and Rep. Erik Severson advising the WCAC of legislation they introduced
relating to Cottage Industries and requested the WCAC’s input on the
proposed legislation. SB-276
(LRB/1192) seeks to provide an additional exclusion of certain independent
contractors from coverage under the worker’s compensation law and
unemployment insurance law in addition to exclusions in the current law.
The bill proposes to exclude independent contractors from coverage
when the individual has done all of the following: has signed a written
agreement with the employer for the work to be performed stating the
intention to be an independent contractor; the individual performs the work
primarily at his or her residence; primarily uses his or her own tools or
equipment; and performs the work free from control direction of the
- Permanent Total Disability
Mr. Aiello updated the
progress of the Permanent Total Disability Committee.
The Department is continuing to monitor the outcome of cases in
which compensation for permanent total disability (PTD) was claimed to
determine if the cases are resolved by litigation, finding of fact
orders or compromise settlements.
The committee is studying claims made for permanent total disability for
a six month period from October 1, 2012 through March 31, 2013.
A total of 273 claims for permanent total disability were made
during that time. This is about
14% of all applications for hearing filed in this timeframe.
168 of the 273 cases have been resolved to date by compromise
agreements, finding of fact orders, stipulations or dismissals.
None of these claims involved either conceded or statutory
permanent disability cases. In
five cases employees were declared permanently totally disabled by
finding of fact orders. Mr.
Aiello also stated that a survey of other states about providing cost of
living increases to permanently totally disabled claimants will be
available later. At the request
of Ms. Pehler the Department will provide more detailed information on
the cases where employees are found to be permanently and totally
Xcel Energy Services,
Inc. v. LIRC: Mr. O’Malley reviewed the
Wisconsin Supreme Court’s recent decision in Xcel Energy Services,
Inc. v. LIRC, Case No. 2011AP203. There were four issues presented
to the Court. The issue of primary concern for the WCAC was whether the
worker’s compensation insurance carrier should be an adverse party named
on the summons and complaint in an action for judicial review of an
order issued by the Labor and Industry Review Commission under s. 102.23
(1), Wis. Stats. The Court held that the insurance carrier was not an
adverse party to the employer and did not need to be included on the
summons and complaint. In a concurring opinion, Chief Justice. Abrahamson stated there was continuing
uncertainty about whom to name as adverse parties in actions for
judicial review under s. 102.23 (1), Wis. Stats., and for the WCAC to
propose to the legislature revisions to s. 102.23 (1), Wis. Stats., to
clarify who must be included as a party in judicial review actions.
Mr. O’Malley stated that in view
of this case there may be another proposal for the WCAC to consider
related to clarifying the parties to be named in judicial review
2013 Wisconsin Act 36 – s. 102.17(1)
(c) & (ct), Wis. Stats.:
Mr. O’Malley discussed an
amendment to s. 102.17(1)
(c) & (ct), Wis. Stats., that was included in 2013 Wisconsin Act 36.This amendment pertains to the Department’s procedure for granting
licenses to appear for individuals who are not licensed to practice law in
Wisconsin. The amendment provided the
Department may deny an application for a license to appear, deny renewal of
a license to appear or revoke a license to appear if it is determined that
the individual is liable for delinquent unemployment insurance
contributions. Section 102.171) (ct),
provides for a hearing process for individuals to contest denials,
non-renewals or revocation of a license to appear before the Department.
Senate Bill –
276(LRB/1192/2): Mr. O’Malley discussed SB
-276.This bill was introduced on
August 29th, 2013 in the Wisconsin State Senate.
A companion bill was also introduced
in the Wisconsin State Assembly as AB-358 on September 13th,
2013.These bills were referred to
committees. This is the proposed legislation discussed in the letter of
September 9th, 2013 from Senator Harsdorf and Representative
Severson. The bill provides that an
independent contractor is not an employee of an employer for whom the
independent contractor performs work or services if the independent
contractor meets three conditions.
The first condition is that the individual has signed or an entity owned by
an independent contractor has signed a written agreement with the employer
stating that the individual is performing the work or services as an
independent contractor. The second
condition is the individual performs the work or services primarily at his
or her own residence and primarily using his or her own tools and equipment
with “primarily” meaning 75 percent or more. The third condition is the individual performs the work or services
free from the direction or control of the employer other than the control or
direction provided for purposes of initial training or quality control.
Mr. Beiriger inquired if an employer under this bill is entitled to
exclusive remedy protection. Mr.
O’Malley advised that exclusive remedy protection for employers is not
included in the language of the bill.
Mr. Metcalf advised that health insurance plans may not cover individuals
who are treated as independent contractors under this bill.
Mr. Krueger advised that the language in the bill did not apply to
the definition of independent contractor of other entities such as the
Internal Revenue Service, Wisconsin Department of Revenue and the Social
Senate and Assembly Labor Committee Chairs:
The members of the WCAC discussed the letter dated August 20, 2013 from
& Senator Grothman. The Wisconsin
Compensation Rating Bureau data is expected to be available on October 4th,
2013.Members of the WCAC may get in
touch with the Wisconsin Compensation Rating Bureau for access to the data.
Mr. Kent requested the Department to draft memos about the
four points mentioned in the letter
from Representative Knodl
and Senator Grothman. Mr. Kent stated
that the Americans with Disabilities Act does not permit employers to
include questions about individuals’ physical condition on employment
applications. He also commented about
the third bullet point relating to fraudulent claims and that no one is in
favor of individuals engaging in fraudulent claims to not be sanctioned. Mr.
Kent recommended to the Council that the Department of Justice may function as a backup if local district
attorneys do not want to bring charges.
Business: Members of the WCAC discussed future
meeting dates. October 15th,
2013, November 12th, 2013 and December 3rd, 2013 are
dates for future meetings.
Motion by Mr. Beiriger
for members of the WCAC to go in to caucus and then to adjourn, seconded by
Ms. Bloomingdale. The motion carried
unanimously and the meeting was adjourned at approximately 11:15 a.m.