Council on Worker's Compensation
July 24, 2001
Members present: Mr. Bagin,
Mr. Beiriger, Mr. Buchen, Ms. Coakley, Ms. Connor, Mr. Glaser, Mr. Gordon,
Mr. Newby, Ms. Norman-Nunnery, Mr. Olson, Ms. Vetter, Mr. Welnak.
Staff present: Mr. O ' Malley,
Mr. Shorey and Mr. Smith.
Ms. Norman-Nunnery convened the meeting in accordance with Wisconsin ' s
open meetings law. As amended, Mr. Welnak moved adoption; Mr. Bagin
seconded the motion. The motion to adopt the minutes of the June 25, 2001
meeting was unanimously approved.
- Meeting September 13,
Norman-Nunnery said that Richard Victor, Executive Director, Worker's
Compensation Research Institute, would be in Madison to lead a briefing on
two WCRI papers. The first is a multi-state examination of health care
costs; the second is a study of medical costs in Wisconsin. She asked the
members to try to hold September 13, 2001 open on their calendars for a
Ms. Norman-Nunnery asked the Council members to review correspondence,
including a letter from Attorney John Edmonson relating to several
The Council members temporarily adjourned to separate caucuses to discuss
their respective legislative proposals.
- "Agreed Bill".
Mr. Bagin explained the following proposals. He proposed that they be
adopted as a package and included in the bill.
- Management Proposal 1 - Honthaner's
Mr. Bagin said that, subject to changes that may come from LRB drafting,
they had reached agreement on a proposal to limit the application of the
Spencer doctrine relating to the payment of temporary and permanent
disability in certain cases. He said the intent was not to disturb the
Spencer doctrine as it relates to disability benefits for cases that
look like Spencer--where the employer initially concedes a work injury;
at some point, the employee undergoes invasive surgical treatment in
good faith that later, on the basis of an adverse medical examination,
is determined to be unnecessary treatment; and as a consequence of this
invasive and unnecessary surgical procedure, the employee has additional
temporary or permanent disability for which the employer is liable. He
said the intent was to respond to the Honthaner ' s Restaurants case so
that, even in cases where employers and insurers concede a work injury,
they may use an examining doctors opinion to defeat liability for
disability benefits that are a consequence of non-invasive and
unnecessary medical treatment--even if the employee underwent the
unnecessary treatment in good faith. (See attachment 1)
- Management Proposal 3
sunset in s. 102.16(2).
Mr. Bagin said the sunset has been extended every session since 1994.
While the system is not perfect it has proven more workable than the
system it replaced.
- Management Proposal 4 - Eliminate
the 10-day payment period in DWD 80.15.
Mr. Bagin said that one of the ironies of automation is that it
sometimes takes longer to issue a check than it did before automation.
He said this would repeal the 10-day payment standard in DWD 80.15 for
stipulations and compromise orders and set a uniform 21-day payment
standard on all orders. Mr. Smith asked if the proposal was intended to
merely revise the rule or to amend the statute and revise the rule. Mr.
Bagin said that to assure a January 1, 2002 effective date the proposal
was to create a statute and amend the rule.
- Management Proposal 7
vocational rehabilitation if employer offers suitable employment at no
less than 90% of the employe e' s pre-injury wage.
Mr. Bagin said the intent was to apply the job offer/suitable employment
concept in s. 102.61(1m) and DWD 80.49 to the DVR process in s.
102.61(1). He said the private-sector system includes the job-offer
concept and, until very recently, so did the state DVR process. Mr.
Smith asked if the intention was that the offer at 90% of the pre-injury
wage had to come from the injury employer or did the concept include a
job search. Mr. Bagin confirmed that the job offer had to come from the
injury employer and that there was no intention to require the employee
to undertake a job search.
- Labor Proposal A.
Increase the current $184 maximum rate for PPD as follows:
1, 2002 $212
- Labor Proposal B.
Currently, the maximum rate for temporary disability, death benefits and
permanent total disability is set by a formula in s. 102.11(1) that uses
the state ' s average weekly earnings as determined under s. 108.05. Mr.
Bagin said that effective January 1, 2002, 2003, 2004 and 2005, the
maximum rate would be the formula amount plus 10%.
- Labor Proposal 17c - Prospective
After the second sentence in s. 102.18(1) add: "The department may
order an employer or insurer to pay for reasonable and necessary future
treatment that arises from the injury."
- Labor Proposal D -
supplemental benefit in 102.44(1)(a) from $150 to $202.
Mr. Bagin said the proposal increases the minimum supplemental benefit
to $202 in s. 102.44(1)(a) and changes the year in s. 102.44(1) from
1976 to 1978 - the year that corresponds with a maximum weekly rate of
- Labor 18 - Recorded
statements DWD 80.24.
When an employee gives the employer or insurer a signed statement
relating to a claim, the employee must be given a copy. When the
statement is recorded and not immediately reduced to writing, the
current rule says the employee or his or her attorney is entitled to a
copy of the entire statement within a reasonable time after application
for hearing is filed. If the employer or insurer do not comply, they may
not use the statement in any manner in connection with the claim. He
said the employer or insurer may comply by providing a copy of the
recording or a transcribed copy. Mr. Bagin said the proposal deletes the
phrase "after application for hearing" in DWD 80.24. He said
the drafter may "clean up" other language in the rule before
codifying it in Chapter 102 as long as it does not change the meaning.
- Future action.
Mr. Bagin said there may still be a need for the Council to take some
further action regarding the investigation of safety violations. He also
said that the Council would study medical costs, probably by creating a
Mr. Bagin said the
management members of the Council unanimously supported these proposals. He
recommended that the Council adopt the package of proposals and add it to
those proposals approved earlier this year. He recommended they take no
further action on items that were previously tabled.
Mr. Glaser said that the
labor members of the Council supported the proposals. He offered several
He said that an article in
the Business Journal reported the 4% rate increase in premiums was only the
second increase in the last 8 years. He said that contrasted sharply with
rate increases in various non-worker's compensation costs over the same
period. Therefore, he said, it ' s possible that the study on medical costs
may show that the worker's compensation system is working fine. Worker ' s
compensation may have found some answers that would benefit the rest of the
He said both sides deserved
praise for working out a reasonable agreement on the Honthaner ' s proposal.
It eliminates a longstanding concern for management that Spencer should be
limited to cases that resemble Spencer. And, it minimizes labor ' s concern
that there might be a significant increase in contested cases, requiring
many more employees to pursue litigation to obtain benefits.
He said the DVR proposal is
a fair one. It takes something that works reasonably well in the
private-sector system and applies the same concept to the state DVR system.
He emphasized his belief that, in most cases, after a work injury an employee
is better off returning to work at the pre-injury employer than attempting
Finally, he said there were
some significant issues on which they were unable to achieve as much as
labor might have wanted. For example, he said, while they agreed to raise
the minimum benefits for long-term disabled from $150 to $208, they had been
unable to agree on a broader cost-of-living increase. He said he hoped that
by taking a four-year approach to the major benefit rates in this bill that,
over the next two years, they could focus more attention on other issues
that merit review and do it in an atmosphere with a little less emotion
Mr. Buchen said he agreed
with Mr. Bagin and Mr. Glaser that reaching an agreement on the
Spencer/Honthaner ' s
issue was a significant achievement. He said it was important to establish
an employer ' s right to use an IME to dispute certain disability claims
involving unnecessary medical treatment. He said it was particularly
important for treatment that can extend over a long period of time, usually
to treat injuries that are more subjective and that do not involve
treatment as serious as the surgery in Spencer. At the same time, he said he
understood that labor members felt it was important to preserve an employe e' s
right to disability compensation after undergoing significant surgical
procedures in good faith, even if the surgery or other invasive treatment is
later determined to be unnecessary.
expressed her thanks to the labor and management leaders, and to the other
labor, management and insurance members and advisors, for resolving some
thorny issues. She also thanked the legislative liaison for his active
participation in the process, as well as those serving as liaison from the
Medical Society, Chiropractic Association and Hospital Association.
Mr. Bagin moved that the
proposals he outlined today be added to the proposals previously approved by
the Council as part of the agreed bill, and that the entire package be
drafted as a bill for consideration by the Legislature during their fall
floor periods. Mr. Glaser seconded the motion. The motion passed unanimously.
The Council adjourned.