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Compensation Advisory Council
Council on Worker’s Compensation
November 8, 2007
Members present: Mr. Beiriger, Mr. Brand, Mr.
Buchen, Mr. Furley, Ms. Huntley-Cooper, Mr. Kent, Mr. Newby, Mr. Olson, Mr. Schimke, Mr. Scott,
and Ms. Vetter
Excused: Ms. Bean, Mr. Shaver, and Mr. Redman
Mr. Conway, Mr.
O’Malley, Ms. Knutson, Mr. Aiello and Mr. Krueger
- Call to Order/Introductions: Ms. Huntley-Cooper 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.
- Minutes: The minutes of the September 24, 2007 meeting were
approved with a correction on page 2 (the reference to 102.29(9) should be
- Reports - Certificate of Readiness Update: Mr. O’Malley reported
that as of the end of October, 4800 applications for hearing had been filed
this year. The WCD is predicting less than 6000 applications for hearing
will be filed this year. Ms. Knutson indicated that of the 460 applications
for hearing received in August 2007, as of November 1, about 15 cases were
scheduled for hearing and 48 were ready for hearing and waiting to be
scheduled. The number of cases ready for hearing continues to decline along
with the average wait time for all ready cases, which is now approximately
six months. ALJ Thurow continues to work on the settlement conference pilot
project and has been successful in mediating settlements in about 94% of
Ms. Huntley-Cooper relayed that the Secretary’s Office is pleased with the
progress the WCD has made in reducing the wait time for cases that are ready
for hearing. There is no plan at this time to make additional changes in the
scheduling process. Mr. Newby requested that Ms. Huntley-Cooper notify the
WCAC in the event there was movement in the direction of implementing any
- Draft Legislative Proposal Review: The WCAC indicated that more time was
needed to review the bill draft. The goal is to have the bill introduced as
a companion bill in both houses by the end of November as there is a floor
period from December 11th through the 13th. The WCAC agreed to have a
conference call on November 14th to further review the bill draft before it
is sent to the drafter for final corrections. The Attorney Fee subcommittee
recommendations to the WCAC for changes to the statute and department policy
were not incorporated into the Labor or Management proposals. Mr. O’Malley
explained there were three recommendations from the subcommittee. The first
involved an administrative change in the way the WCD calculates attorney’s
fees in cases with a Social Security offset. The second recommendation
involved increasing the minimum attorney’s fee from $100 to $250. The third
recommendation involved increasing the attorney’s fee from 20% to 33% for
bad faith, delayed payment, safety violation, and unreasonable refusal to
Mr. Newby indicated that injured worker access to attorney representation is
an issue for Labor. Mr. Buchen indicated Management agreed to the proposed
change in calculation of attorney’s fees in cases of a Social Security
offset. Attorney John Neal served on the subcommittee and he further
explained the three recommendations. Ms. Knutson relayed concern that
attorneys would claim the higher attorney’s fee (33%) when those claims were
merely part of a global settlement. The WCD would take the position that the
33% attorney’s fee would only apply when there was a separate settlement
involving those claims or benefits for those claims were awarded following
hearing. Attorney John Neal agreed that the 33% attorney fee would only
apply to those specific claims at hearing or in a limited compromise to
Mr. Kent noted that the president of the Wisconsin State Bar wrote a letter
to the WCAC expressing concern with the current attorney’s fee structure.
The WCD will provide the State Bar letter along with the other materials
from the Attorney Fee subcommittee to the WCAC members prior to the
scheduled teleconference. The attorney’s fee proposal was then tabled. Mr.
O’Malley indicated that the administrative change to calculating attorney’s
fees (when a Social Security offset was involved) would require training of
WCD staff and the goal would be to have staff trained by the end of the
Mr. O’Malley reviewed sections of the bill draft with the WCAC. Temporary
help agencies were redefined in the amended statutes to expand the exclusive
remedy to temporary help agencies. Further amendments to Wis. Stat. §§102.29
(6) through (10) were included by the drafter for consistency and
maintaining the status quo where exclusive remedy is raised as a defense in
tort cases. Mr. O’Malley noted that the creation of Wis. Stat. §102.29 (10)
did not go through the WCAC agreed bill process.
Proposed changes to Wis. Stat. §102.16 were to include applicability of the
medical treatment guidelines in the hearing process.
The drafter created four separate paragraphs to incorporate the changes in
Wis. Stat. §102.17(4) with regard to payment of prosthetics (including knee
and hip replacements) in barred traumatic claims. These proposed draft
amendments will be further reviewed and suggested language will be forwarded
to the drafter. The drafter also amended Wis. Stat. §102.66 with regard to
payment by the Work Injury Supplemental Benefit Fund for barred traumatic
The draft changes pertaining to professional employer organizations (PEOs)
were reviewed and the WCD has requested further language changes regarding
notice provisions when policies are cancelled.
The WCD will request that the drafter change the proposed language allowing
a reasonable time to challenge the reasonableness of a pharmacy charge to 30
days to be consistent with other reasonableness of fee disputes.
The WCAC discussed the changes the drafter made replacing “such” with “that”
in various sections. The WCAC is concerned that this type of language
updating does not change current statutory intent or interpretation.
- Correspondence: Mr. Conway reviewed the recent correspondence
from Mr. Chuck Carr and the Department’s response. Mr. Carr expressed
concerns with the WCAC unanimous agreed bill process. Mr. Beiriger explained
that it was important for the agreed bill process not to be subject to
- New Business: No new business was discussed.
- Unfinished Business: Mr. Newby reported he requested that the WCD
research the savings that have occurred as a result of changing the maximum
fee for medical expenses – reducing the standard deviation from 1.5 to 1.4.
Mr. Aiello explained that the WCD cannot run a query against the database; a
programmer will need to perform the calculations. The calculation will be
run against the certified databases. Mr. Conway explained that it will be
difficult to calculate total savings because the standard deviation changes
– increases each six months with billed charges.
Mr. Kent expressed concern that the agreed bill still does not provide an
adequate level of benefits to injured workers receiving permanent total
disability (PTD) benefits. Mr. Kent invited comments from the audience. Ms.
Patricia Grillot explained her financial situation as an injured worker
receiving permanent total disability benefits for over 20 years. She
indicated that the level of benefits provided is inadequate and
inappropriate and as a consequence, injured workers receiving PTD benefits
were not treated fairly, equitably or respectfully. Mr. Newby responded that
increasing benefits for injured workers receiving PTD benefits over an
extended period of time remains a top issue for Labor.
Adjournment: Discussion on all agenda items concluded and the meeting
was adjourned at approximately 12:30 p.m.
Future meeting dates are to be announced.
Next Meeting: not scheduled yet.