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Council on Worker’s Compensation
October 15 , 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
Next Meeting November 12th, 2013
- 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.
Approval of Minutes:
Mr. Kent suggested a correction in the minutes for the September 17th,
2013 meeting to the last sentence of the second paragraph in Item
No.9 related to the letter from the Senate and Assembly Labor
Committee Chairs. The correction is to delete and replace the
sentence with the following,” Mr. Kent recommended to the Council
the Department of Justice may function as a backup if local district
attorneys do not want to bring charges.” Mr. Kent moved to approve
the minutes of the September 17th, 2013 meeting as
corrected. Mr. Beiriger
seconded the motion.
The minutes, as corrected, were unanimously approved
Letter from Senate and Assembly Labor Committee Chairs:
Mr. O’Malley reviewed the letter dated September 30th, 2013
from Representative Dan Knodl, Chair of the Assembly Committee on Labor,
Senator Glenn Grothman, Chair of the Senate Committee on Judiciary and
Labor, and seven other members of the Assembly.
The letter contained suggestions for legislative changes for the
Council to consider. The
suggestions contained in the letter were grouped into three areas,
addressing increasing medical costs, fraud detection and enforcement and
administrative law judge reform. The suggestions contained in the letter
included the following:
The Council should consider allowing insurance carriers to utilize
Fees regarding medical record copies do not reflect the digitalization
of records and should be adjusted accordingly.
Mr. O’Malley stated this
suggestion is included in Labor Proposal No.2 to limit the charge to $20
per request for providing copies of medical records in an electronic
The legislators encouraged the Council to work with the Department of
Workforce Development and the Health Care Provider Advisory Committee to
conduct a thorough review of the treatment guidelines contained in Ch.
DWD 81 of the Wisconsin Administrative Code.
The Council should work with the Department of Workforce Development and
the Health Care Provider Advisory Committee to ensure partial disability
ratings in DWD 80.32 of the Wisconsin Administrative Code are reasonable
and up to date. Mr. O’Malley
advised that the Department is currently working on a project to update
the minimum disability ratings in DWD 80.32.
The U.S. Supreme Court decision in Industrial Commission v. Mc Cartin
prevents employees from being able to stack worker’s compensation
awards. The legislators
encouraged the Council to codify this case law rule in state statute and
to look at how other states deal with concurrent jurisdiction to ensure
individuals are not using Wisconsin to enhance their benefits. Mr. O’Malley stated that under this case law employees are not
allowed to double dip in Wisconsin by collecting on successive claims in
more than one state. Mr. Schwanda inquired about the number of
concurrent jurisdiction cases that occur in Wisconsin. Mr. O’Malley
stated there are very few with no more than approximately 10 per year.
Mr. Buchen requested an example of a concurrent jurisdiction claim. Mr.
O’Malley stated when an injured employee received indemnity payments of
$1,000 from a claim in another state and could also maintain a claim for
that injury in Wisconsin with a total value of $1,500, the individual
would be eligible to receive $500 for indemnity payments in Wisconsin
for that injury.
There are cost containment measures in place for prescription drugs,
however, those policies do not extend to on-site physician dispensing
and the legislators would like to see this addressed.
Mr. O’Malley stated that Labor
Proposal No. 3 and Management Proposal No. 10 cover physician dispensing
of prescription drugs.
The Council is encouraged to review Section 102.17(4), Stats, to be sure
the Wisconsin statute of limitations provisions are reasonable and
consistent with other states. Mr. O’Malley stated Management Proposal
No.4 addresses this concern and under this proposal the statute of
limitations will be reduced to three years.
Under current law small employers that do not receive an experience
rating modification are at a disadvantage of receiving adjustments for a
no loss claim year. Other states
have created a premium incentive program for small employers and the
legislators would like the Council to consider establishing such a
program. Mr. Bernard Rosauer, President of the Wisconsin Compensation
Bureau, this is a change that would need to be made by the Wisconsin
Compensation Rating Bureau (WCRB) and would need to be approved by the
Rating Committee and the Governing Board. Whatever premium discounts are
given to some employers will need to be made up for by other employers.
Mr. Ginsburg stated that in states with this kind of program, typically
there is a five percent credit if that employer has no injuries in the
preceding three years and a five percent premium debit if an employer
has two or more injuries in a year. Mr. Rosauer stated the WCRB is
willing to look into this proposal.
Since employees may not be entirely truthful when it comes to the
condition of an injury the Council is encouraged to look at the
definition of fraud in s.943.395, Stats, to ensure it is applicable to
circumstances that may arise in worker’s compensation cases. If this definition of fraud is not applicable the Council is
encouraged to create a suitable definition with similar penalties in
Chapter 102, Stats.
Many other states have requirements for insurance forms, including checks
issued by insurers, contain a warning to employees that insurance fraud is a
crime, and the Council may want to consider adopting this. Mr. Metcalf stated that the Office of the Commissioner of
Insurance (OCI) has jurisdiction over this proposal and the Department will
discuss this proposal with OCI.
The Council is encouraged to work with the Health Care Provider Advisory
Committee to update Wisconsin’s guidelines relating to opioid treatments and
the abuse and overuse of opioids of some injured workers.
When fraud cases are forwarded from the Department of Workforce
Development to local prosecutors, follow-up and prosecution seems to be
sparse, and other agencies such as the Department of Justice (DOJ) or the
Office of the Commissioner of Insurance (OCI) should be given the ability to
prosecute these cases as well.
Mr. O’Malley stated there have been discussions with the DOJ about
prosecuting fraudulent worker’s compensation cases and it may be an option
for the assistant attorneys general to assume prosecution of these cases.
The Council may want to encourage greater electronic information
coordination between the Worker’s Compensation Division and other state
agencies to identify wages reported earned by employees receiving
compensation for permanent total disability, and agreements with the
Department of Revenue and the Unemployment Insurance Division may help in
The Council should consider codifying training for administrative law judges
to ensure a fair and honest court process. Mr. O’Malley explained that for
many years the Department has provided an extensive training program for
newly hired administrative law judges. The training program includes reading
and discussing Ch. 102, Stats, and DWD 80 and 81 of the Wisconsin
Administrative Code, briefing and discussing important appellate court
decisions, training on wage and benefits computations, office procedures and
Under DWD 80.03(1) (c) of the Wisconsin Administrative Code the Department
must sign off on any employer/employee compromise agreement concerning an
employer’s liability. The
Council should provide greater clarification in statute or rule to
interested parties as to what factors the Department considers in approving
Mr. O’Malley reviewed the
correspondence received by the WCAC since the last meeting.
Two documents from the Labor and Industry Review Commission (LIRC) were
received that contained three proposed legislative changes to Chapter 102,
The first proposal is to amend Section 102.18(3), Stats., to reflect that
petitions for review must only be filed at LIRC and to clarify the standard
for accepting late appeals. The
second proposal is to amend Section 102.18(4) (a),Stats., to clarify
the time period to set aside an order
begins to run from the date of LIRC’s order. The third proposal is in response to the decision by the Wisconsin
Supreme Court in Xcel Energy Services, Inc. v. LIRC, and the proposal
is to amend Section 102.23(1) (a), Stats., to clarify who must be named as a
party in judicial review actions.
Staff from LIRC will be in attendance at the next meeting to explain these
proposed legislative changes and to answer questions
Permanent Total Disability Study Committee:
Mr. Aiello updated the
progress of the Permanent Total Disability Committee. Out of 273 total claims where compensation for permanent total
disability was claimed, 194 claims have been closed. Compensation for permanent total disability was paid in four of these
claims. Hearings were held in 18
cases and continued hearings were scheduled in nine cases. Pre-hearing
conferences were held in three cases. Seven cases were appealed to the Labor
and Industry Review Commission (LIRC).164 cases have settled without a hearing. From 1994 to date the Department has studied the number of claims
where permanent total disability has been paid. During this period there has been an average of 34 new permanent
total disability claims paid per year.
SB276 & AB358 relating to exclusion of Cottage Industries from coverage
under worker's compensation and unemployment insurance laws:
Mr. Beiriger stated he was
inclined for employers to have coverage since there is some danger to
employers with this bill. It is important to make sure that employers are
aware of the danger. If this bill is enacted into law, there may be some
cost savings in the short run but there will be unintended consequences for
Health Care Liaisons Report:
Mark Grapentine, from the Wisconsin Medical Society, Ms. Laura Leitch, from
the Wisconsin Hospital Association, Mr. Thomas Moore, from the Wisconsin
Chiropractic Association and Ms. Annie Reinhard, from the Wisconsin Physical
Therapy Association appeared before the Council to give their report.
Mr. Grapentine expressed thanks to the Council on behalf of the health care
liaisons for granting additional time to submit their proposals. He also expressed thanks to Mr.
Bernard Rosauer, President of the Wisconsin
Compensation Rating Bureau (WCRB), for providing the data requested by the
health care liaisons. Mr. Grapentine
stated the health care liaisons have been meeting a great deal to work on
their proposals and will have the proposals available to present to the
Council at the November 12th, 2013 meeting. Mr. Grapentine also expressed his thanks on behalf of the health care
liaisons to the legislators. Mr.
Grapentine stated the health care liaisons were not prepared to discuss the
specifics of their proposals at this meeting but they will be ready to
discuss their proposals with the Council at the meeting next month.
Mr. Beiriger expressed concern that it may be too late if the health care
liaisons did not present their proposals until the next meeting. Mr. Beiriger stated the Council was operating on a tight time line to
complete the agreed upon bill.
Mr. Moore stated the health care liaisons are aware of what the Council is
requesting and were working on four competing ideas. Mr. Beiriger stated that it is important for the health care liaisons
to deliver their proposals before the next meeting because four months from
now the legislative session will be over. Mr. Beiriger requested the health care liaisons to deliver their
proposals a week to ten days before the next meeting. Ms. Bloomingdale stated the Labor representatives of the Council
believed the health care liaisons would present their proposals at the
meeting today, and that the Labor representatives are looking forward to
working on the issues. Mr. Grapentine stated the WCRB provided its data late last week and the health care
liaisons need time to review the data because they want to do things right.
Other Council Business:
Mr. Kent inquired about
appointments to the Council for the members whose terms have ended. Mr. Kent
stated there could be a legal problem with finalizing a bill if 70% of the
Council members do not have current appointments. Mr. Metcalf stated that he will discuss appointments to the Council
with the Department of Workforce Development Secretary as soon as possible.
Motion by Mr. Beiriger, seconded by Ms. Bloomingdale to go in to caucus
and then to adjourn. The motion
carried unanimously and the meeting was adjourned at approximately 11:15