Council on Worker's Compensation

Meeting Minutes
Madison, Wisconsin
April 19, 2001

Members present: Mr. Bagin, Ms. Connor, Mr. Beiriger, Mr. Buchen, Ms. Coakley, Mr. Fronk, Mr. Glaser, Mr. Gleichert, Mr. Muelver, Mr. Newby, Ms. Norman-Nunnery, Mr. Olson, Ms. Vetter, Mr. Welnak.

Staff present: Mr. Conway, Mr. O’Malley, Mr. Shorey, and Mr. Smith.

  1. Minutes. Ms. Norman-Nunnery convened the meeting in accordance with Wisconsin’s open meetings law. Mr. Welnak moved adoption of minutes of the March 14, 2001 meeting. Ms. Vetter seconded the motion. The motion passed unanimously.
  2. Update on Safety Investigations. Ms. Norman-Nunnery said she met with OSHA, and had information from private safety consultants and the Department of Health and Family Services (DHFS) on the possibility of conducting safety investigations. She said the meeting with Department of Commerce (DOC) Secretary Blanchard, Mr. Newby and Mr. Buchen did not occur because DOC Secretary Blanchard expressed several concerns to DWD Secretary Reinert about DOC conducting the investigations. Additionally, the meeting did not occur because there were other options that the Council had directed follow-up on that she and Secretary Reinert believed, based on contacts that they had made, could be put in place without further delay.

    Mr. Gleichert asked if Secretary Blanchard had refused to do them. Ms. Norman-Nunnery said that Secretary Blanchard expressed concerns about the quality and quantity of the investigations that had been conducted, had some internal concerns with S&B, and had some concerns about the reports stemming from the Miller Park investigation.

    Mr. Glaser said that he felt it was clearly S&B's responsibility and noted the Council had supported fully funding the S&B costs. He said DOC should be supporting the Council rather than worrying about negative publicity. Mr. Buchen agreed and said that he wanted to personally discuss the matter with Secretary Blanchard and the S&B Division Administrator, Mr. Corry.

    Mr. Gleichert asked how others felt about hiring investigators in the Worker's Compensation Division. Ms. Coakley said she was not comfortable with that idea. She preferred investigations to be more at "arms length" from the Division.

    Ms. Norman-Nunnery then explained a two-page proposal from DHFS offering to do the safety investigations and introduced Ms. Terry Moen and Dr. Anderson from DHFS. She said one of the advantages for DHFS is that they already have or would soon have the authorized positions in their budget. She said securing the positions could be a problem for DOC or DWD.

    Mr. Newby said he liked the reputation of the DHFS staff. He said it was his impression that these were good people committed to the mission. He said DOC's reluctance to provide the service raised some questions about the quality of service that might be provided even if DOC were to agree to do the investigations. He also expressed concern about the quality of S&B's state OSHA responsibilities. He said that before he would be comfortable with S&B he would want to know that they really are committed to doing the work. Still, he said that he agreed with Mr. Buchen and Mr. Glaser that the Council should not act on the other options without getting information directly from DOC.

    Mr. Bagin said he thought S&B had the experts. Mr. Conway said DHFS also had some unique certifications in health and OSHA activities. Mr. Glaser said they appeared to have very strong credentials in occupational medicine, but asked what experience they had with things like machine guards. Ms. Moen responded that all industrial hygiene staff has cross training in safety and one person specializes in industrial fatalities. Ms. Coakley said she was still uncomfortable with DHFS doing investigations. Mr. Glaser said DHFS might be a good option if DOC is not able to provide the service. Mr. Fronk said he did not support using private vendors.

    Mr. Buchen offered to contact Ms. Blanchard to arrange a meeting with Mr. Buchen and Mr. Newby. The Council agreed.
  3. Budget Update. Ms. Norman-Nunnery said the 5% cuts would not apply to the Worker's Compensation Division. The department is not applying the cuts across-the-board to all divisions, but is applying the cuts judiciously. However, she said that the Governor's budget provided some of the requested funding for two ALJs, but did not provide authorization for new positions. Instead, the Governor directed DWD to convert 2.0 FTE program assistant positions to 2.0 FTE ALJ positions. She said that the Department did not have any extra positions to convert.

    Mr. Buchen and Mr. Bagin said that the Council should send a letter to the Governor explaining that both labor and management Council members had made a commitment to reduce hearing delays and requesting the Governor's support for the necessary position authorization. Council members unanimously endorsed the suggestion. Ms. Norman-Nunnery said the Department would draft and send the letter.
  4. Agreed Bill Process: A Review. Mr. Bagin and Mr. Glaser led a general discussion reviewing some of the problems that had affected the Council's ability to reach a consensus on significant issues during the last legislative session. The discussion focused on how the Council should respond to LIRC and court decisions.

    Mr. Bagin, Mr. Buchen and Mr. Beiriger suggested the guiding principle should be to restore the status quo when it is unexpectedly upset by a LIRC or court decision. For example, Mr. Beiriger said one option would be to systematically review court decisions by preparing a list of "court decisions" to consider in the same way that Department proposals, labor proposals, management proposals, legislative proposals, and public proposals are reviewed by the Council.

    Mr. Newby, Mr. Glaser and Mr. Welnak agreed some review might be helpful, but said the Council should not over-react, for example, as some people did when Hagen (loss of the arm at the shoulder) and Theuer (employer's share of family health insurance as wages) were appealed. Mr. Newby asked the management members what the key court decisions were at this time. Mr. Bagin said the Honthaner's case (limiting the use of IMEs and, arguably, expanding the meaning of conceded liability under Spencer) was a major concern for management members.

    Mr. Welnak suggested the Council look for opportunities to practice "win-win" bargaining on the bill by picking at least some issues for serious review that both sides had a commitment to resolving. Mr. Smith said the Council had been successful in the past in using sub-committees for that purpose--at least on more complicated issues that require extended research or discussion. He said using subcommittees also helps Council members by allowing active participation from parties who are not members of the Council, but clearly have a stake in the outcome. Ms. Norman-Nunnery questioned whether using sub-committees limited the breadth of understanding too narrowly to only those Council members participating in the sub-committees. However, she agreed that the Council should explore ways to continue becoming more effective in discussing and negotiating issues.
  5. Labor legislative proposals. Mr. Glaser explained 18 proposals (list attached).
  6. Management legislative proposals. Mr. Bagin explained 7 management proposals (list attached) and said there was one more that he hoped to offer at the next meeting.
  7. Correspondence. Ms. Norman-Nunnery reviewed Rep. Travis's letter in support of Mr. Ivan Peterson's request for a cost-of-living adjustment for long-term disabled. She then led a brief discussion about a letter from 39 legislators. The letter requested that the Council review and respond to the Larsen decision (a business owner who lost some fingers from frostbite received benefits after passing out while entering his trailer in sub-zero temperatures after taking two diet pills and 4-5 drinks in 2 hours). There was a consensus that individual members of the Council should initiate discussions with concerned legislators before considering any change in the current no-fault system with a 15% reduction where intoxication is a causal factor.
  8. Change in the meeting date and location for the next meeting. The Council changed the next scheduled meeting from May 24th to May 23rd. Mr. Welnak requested the location be changed from GEF-3 to the Crown Plaza and that future meetings be held at the Crowne Plaza when possible. Ms. Nunnery said she would try to make the location change. The members agreed that May 23rd meeting would be primarily for developing the "agreed bill." If another meeting is necessary it will be scheduled at the May 23rd meeting. NOTE: The May 23rd meeting will be at the Crowne Plaza, 201 East Washington Ave, Madison at 10:00 A.M. - 3:00 P.M.
  9. Adjournment. The Council adjourned until May 23rd.

LABOR PROPOSALS

WORKER'S COMPENSATION ADVISORY COUNCIL MEETING
APRIL 19, 2001

  1. 102.11. REMOVE MAXIMUM ON COMPENSATION BASED ON STATE AVERAGE WAGE.
  2. 102.11. PROVIDE FOR INDEXING OF DISABILITY RATES
  3. 102.11. PROVIDE FOR ANNUAL INCREASE IN DISABILITY RATES BASED ON CONSUMER PRICE INDEXES.
  4. 102.44. PROVIDE INCREASES IN MAXIMUM LIMITATIONS.
  5. PROVIDE THAT IF ANY MEDICAL EXAMINATION IS TO BE USED TO TERMINATE BENEFITS BY AN EMPLOYER/INSURER IT MUST BE PERFORMED FROM A LIST OF IMPARTIAL PROVIDERS MAINTAINED BY THE WORKER'S COMPENSATION DIVISION.
  6. PROVIDE THAT WHEN AN INJURY RESULTS IN 200 OR MORE WEEKS OF DISABILITY A WORKER WILL BE GIVEN THE OPTION OF CLAIMING PERMANENT DISABILITY BASED ON LOSS OF EARNING CAPACITY.
  7. PROVIDE THAT AN EMPLOYEE ON WORKER'S COMPENSATION MUST BE PROVIDED HEALTH INSURANCE ON THE SAME BASIS AS AN ACTIVE EMPLOYEE.
  8. 102.03(2). DISCUSS CHANGES IN EXCLUSIVITY SECTION TO EXEMPT AN EMPLOYER: (1) CONVICTED UNDER CRIMINAL STATUTES IN CONNECTION WITH A DEATH OR INJURY; OR (2) IN CASE OF DEFAMATION BY THE EMPLOYER.
  9. CREATE A REBUTTABLE PRESUMPTION THAT TB AND HEPATITIS C ARE WORK RELATED FOR EMPLOYEES IN HIGH RISK OCCUPATIONS.
  10. 102.65(3). REMOVE CAP ON THE WORK INJURY SUPPLEMENTAL BENEFIT FUND.
  11. 102.18(BP). PROVIDE MINIMUM BAD FAITH PENALTY OF $5000.
  12. BAD FAITH IF EMPLOYER/INSURER MIS-STATES THE WORKER’S RIGHTS UNDER THE LAW (e.g.. that employee must go to company doctor, can’t go to chiropractor, must get pre-approval of treatment, etc.)
  13. 102.49 (5). RAISE THE DEATH PAYMENT FROM $5,000 TO $20,000. (IT'S ILLOGICAL THAT THE PAYMENT INTO THE FUND FOR A DEATH IS $2,000 LESS THAN THE LOSS OF THE FOOT--A $7,000 PAYMENT.)
  14. 102.60 (9). RAISE THE MAXIMUM PENALTIES FOR ILLEGAL EMPLOYMENT OF A MINOR FROM $7,500 TO $15,000 AND FROM $15,000 TO $30,000.
  15. DISCUSS THE POSSIBILITY OF SEEKING A WAIVER FROM DHFS TO ALLOW INJURED WORKERS, WITHOUT DEPENDENTS, WHO MIGHT NOT HAVE INSURANCE, TO BE COVERED UNDER BADGER CARE.
  16. HAVE THE DEPARTMENT DO A STUDY REGARDING RATIO OF MEDICAL EXPENSE VS BENEFIT EXPENSE. NATIONAL AVERAGE IS 50/50 WHILE WISCONSIN IS 62/38.
  17. 102.57. CREATE PROCEDURE FOR THE INVESTIGATION AND ENFORCEMENT OF SAFETY VIOLATIONS.
  18. PROVIDE ADMINISTRATIVE LAW JUDGE ABILITY TO MAKE A PROSPECTIVE ORDER REGARDING MEDICAL TREATMENT AND REHABILITATION ISSUES.
  19. REVISE DWD 80.24 AS TENTATIVELY AGREED TO IN 1998:
  20. STATEMENT OF EMPLOYEE: WHEN AN EMPLOYEE GIVES A STATEMENT SIGNED BY HIM, WHICH IN ANY WAY CONCERNS HIS CLAIM, A COPY OF SUCH STATEMENT MUST BE GIVEN TO THE EMPLOYEE. WHEN SUCH STATEMENT IS TAKEN BY A RECORDING DEVICE AND IS NOT IMMEDIATELY REDUCED TO WRITING A COPY OF THE ENTIRE STATEMENT MUST BE GIVEN TO THE EMPLOYEE WITHIN A REASONABLE TIME after application for hearing is filed. THE ACTUAL RECORDING MUST BE AVAILABLE AS AN EXHIBIT IF FORMAL HEARING IS HELD. FAILURE ON THE PART OF THE EMPLOYER OR INSURANCE CARRIER TO COMPLY WITH THE ABOVE WILL PRECLUDE THE USE OF SUCH STATEMENT IN ANY MANNER IN CONNECTION WITH THE ABOVE CLAIM.

Management Proposals 2001

  1. 102.16 (2M) (80.73) 102.13(3)

    Reinstate the jurisdiction of the division Administrative Law Judge to resolve disputes between health service provider and insurer or self insured employer for any treatment that the department determines to be unnecessary. In effect, eliminate what has been termed the "Spencer Rule".
  2. 1 02.11 (1) and others

    Require Council approval of any change to long-standing departmental interpretation, i.e. definition of taxable wage, waiting period, and interpretation of what constitutes a class for part time employment.
  3. 102.16 (2d)

    Eliminate the sunset provision in determining reasonableness of fees. (see footnote 59)
  4. DWD 80.15 – Payment after an order

    Establish a uniform 21 days for payments ordered by stipulation, or compromise.
  5. DWD & Divisional Resources should be devoted equally to sections 102.57 and 102.58-

    Safety Initiatives and Investigations must include drug free workplace policies & violations should be dealt with in equal terms. An employer who violates a safety rule should be subject to the same penalty as an employee who violates workplace drug & alcohol policy.
  6. 80.02 (2e) 4

    Update the division practice on presumption of PPD from 3 weeks to 6 weeks of TTD.
  7. 102.61 – Rehabilitation (create 102.43 (5m)

    Any employer that offers an employee suitable employment is not liable for temporary disability for instruction related to s. 102.61 (1) or (1m) under sub. (5) on travel expenses and maintenance costs under s. 102.61 (1). "Suitable employment" in this subsection means a job within the employee’s permanent work restrictions for which the employee has the necessary physical capacity, knowledge, transferable skills and ability and which pays at least 85% of the employee’s pre-injury average weekly wage.