Worker's Compensation Advisory Council
Council on Worker’s Compensation
Meeting Minutes
Madison, Wisconsin
November 14, 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. Collingwood (for Mr. Schimke), Ms. Connor (for Mr. Scott), and Ms. Vetter

Excused:   Mr. Shaver

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

  1. Call to Order/Introductions: Ms. Huntley-Cooper convened the Worker’s Compensation Advisory Council (WCAC) meeting via teleconference at approximately 2:00 p.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 November 8, 2007 meeting were approved without correction.
     
  3. Draft Legislative Proposal Review: The WCAC discussed the attorney fee proposal from the Attorney Fee Discussion Group.  After a discussion on the proposals including the issue of access to legal representation, the WCAC unanimously agreed to approve the proposed administrative change in calculation of attorney’s fees involving the Social Security offset and to amend §102.26(2) to increase the maximum fee from $100 to $250 when there is no dispute as to the amount of compensation due.   Attorney David Weir explained Labor’s proposed changes to the bill draft.
     
    1. Amend page 13 lines 17-17 and page 21, lines 11-13 to change the position of the phrase “and by the department”:  “The standards promulgated under sub.(2m)(g) shall be applied by an expert and the department in rendering an opinion as to the necessity of the treatment under this paragraph.” Mr. O’Malley explained that the WCD had not rejected an expert opinion from the reviewer retained by the department.  The expert is to apply the medical treatment guidelines in rendering an opinion to resolve a necessity of treatment dispute.  In addition, the department is to follow the medical treatment guidelines in a hearing setting.  The proposed change will not affect current procedures the WCD uses in resolving necessity of treatment disputes.  The WCAC unanimously approved this language change.
       
    2. Relates to a language change to reflect the intention of the WCAC in adopting Management proposal #3, transferring back to the Work Injury Supplemental Benefit Fund (WISBF) the expenses for knee or hip replacements first implanted after the statute of limitations had run on these barred traumatic claims.  The proposed change is to §102.17(4)(c) and (d) and page 46, lines 7-9 as follows:


    3. (c)
      Benefits or treatment expense for a traumatic injury described in par. (b) becoming due 12 years after the date of injury or last payment of compensation as described in par. (a), whichever date is latest, shall be paid by the employer or insurer, except that payment for expense of repair, replacement, or other treatment relating to an artificial spinal disc or a total or partial knee or hip replacement that was not first supplied within 12 years after the date of such a traumatic injury or last payment of compensation as described in par. (a) shall be made as provided in par. (d).  

      (d)
      Benefits or treatment expense becoming due 12 years after the date of injury or death or last payment of compensation as described in par. (a), whichever date is latest, for an occupational disease, or for a traumatic injury described in par. (b) causing the need for an artificial spinal disc or a total or partial knee or hip replacement not first supplied within 12 years after the date of such a traumatic injury or last payment of compensation, shall be paid from the work injury supplemental benefit fund under s. 102.65 and in the manner provided in s. 102.66. 

      page 46, lines 7-9:  “Occupational disease or for a traumatic injury described in s. 102.17(4)(b), other than a claim for the benefits or expense for an artificial spinal disc or a total or partial knee or hip replacement described in s. 102.17(4)(c), and the claim is barred solely by the statute of limitations…”

      The WCAC discussed the statutory changes that were effective in 2002 and their original intent, the effect of the changes effective in 2006 and the intent regarding the current proposal.  The WCAC unanimously approved the language changes.
       
    4. The changes regarding temporary help agencies in the bill draft are to be changed on pages 9 and 10, s. 102.01(2)(f) should return to the original statutory language.  On page 22 – 23, add in s. 102.29(6)(a) as follows: “Notwithstanding s. 102.01(2)(f), for purposes of this subsection, a temporary help agency is defined as an employer primarily engaged in the business of placing employees with other employers.”

      Also, sections 22-27 of the bill draft on pages 23-26 should be stricken. 

      The WCAC unanimously approved the language changes.
       
    5. Remove the draft changes to s. 102.44(6) that changes the wording from “such” employment to “that” employment.

      The WCAC is concerned that any changes in the wording may result in unintended differing legal interpretations.  The WCAC approved the language change to revert back to current statutory language. 

      Mr. O’Malley reviewed the proposed language change to s. 102.315 (10)(a)2 and (b)2 on notice of cancellation:  “…and notice of the cancellation is provided by the insurer as required under s. 102.31(2)(a).”  This change will clarify that the carrier is to give notice of cancellation.  The changes will be added to the bill draft and highlighted for the WCAC to further review.  

      Mr. O’Malley reviewed the proposed language change to 102.425 on pages 41-42 to delete “reasonable notice” and substitute “the employer or insurer shall mail or provide written notice within 30 days after receiving a completed bill…”  This proposed change would result in mirroring the language for other reasonableness of fee disputes. 

      The WCAC discussed the draft bill provisions on the effective date for the statutory changes regarding payment of medical expenses in occupational hearing loss claims.  Mr. Buchen raised concerns that the current language applies only to prospective dates of injury and that the expenses currently should not be payable in claims with no compensable hearing loss.  Attorney Weir raised concerns that statutory amendment involves a substantive change and therefore should not be retroactive.  Mr. O’Malley explained that the Labor and Industry Review Commission (LIRC) had issued decisions involving payment of hearing aids with no compensable hearing loss in the past ordering payment and denying payment in some cases.  The issue of the effective date for changes in the statute disallowing hearing aid expenses for claims with no compensable hearing loss was tabled for the next meeting. 

      Mr. O’Malley indicated he would ask the drafter to put back in language to the bill draft concerning a change to s. 102.18(1)(bg)1, 2, and 3 allowing appeals to LIRC for necessity of treatment disputes resolved at hearing.
       
  4. Adjournment:  Discussion on all agenda items concluded and the meeting was adjourned at approximately 3:30 p.m.

    Future meeting date – tentatively November 20, 2007 at 10:00 a.m. via teleconference.