Council on Worker's Compensation
September 13, 2001
Members present: Mr. Bagin,
Mr. Beiriger, Mr. Buchen, Ms. Coakley, Ms. Connor, Mr. Glaser, Mr. Gordon,
Ms. Norman-Nunnery, Mr. Olson, Ms. Vetter
Staff present: Mr. Conway,
Mr. O ' Malley, and Mr. Smith.
Ms. Norman-Nunnery convened the meeting in accordance with Wisconsin ' s
open meetings law. As amended, Mr. Bagin moved adoption of the minutes of
July 24, 2001 meeting; Ms. Vetter seconded the motion. The motion was
- Mr. Victor Presentation
Norman-Nunnery said that Richard Victor, Executive Director, Worker ' s
Compensation Research Institute, was unable to get a flight to Madison to
lead a briefing on two WCRI papers. She distributed copies of his
materials for the Council to review.
- "Agreed Bill".
Mr. Smith reviewed about a dozen minor changes that were incorporated in
the second draft of the bill, LRB 3500/P2.
Mr. Bagin said several
people had contacted him regarding the requirement in the first draft that
all tape-recorded statements had to be transcribed. He said while many
statements are recorded as a routine practice, few are ever used again by
anyone for any purpose. Mr. Smith said that Ms. Connor had contacted him
on that issue after reviewing the draft and that labor representatives
agreed to a clarifying amendment. That amendment requires the tape be
transcribed or copied for the employee only if the employee, his or her
attorney, or another person acting as the employee ' s agent it.
Mr. Glaser said several
people had contacted him about the notice to the employer in the VR
section. He said they were concerned that this part of the process might
encourage litigation about medical work restrictions, and the litigation
would significantly delay a person ' s ability to pursue retraining
opportunities. Mr. Smith said the same concern was raised when the VR rule
in DWD 80.49 was adopted several years ago. He said that, at that time,
the Council decided the employee could seek an immediate hearing and that
the Department would simply expedite the hearing. If the Department was
unable to informally expedite hearings to the satisfaction of the labor
members of the Council, it was understood that the Council might establish
a formal standard. Mr. Smith said there have only been a few for
a hearing on any issue related to the private-sector VR process in DWD
80.49, probably because there have been relatively few cases in the system
over the years.
Mr. Glaser said he was
comfortable with leaving the language in the current bill as long as the
Department expedited the hearings on this issue on request.
Mr. Bagin and Mr. Glaser
asked whether the provision allowing prospective review of medical
treatment would be based on the date of the review or the date of the
injury. Mr. Bagin said that, like the "Spencer/Honthaner ' s"
issue, they had intended that it apply based on the date of the
prospective review and not be limited to dates of injury after January 1,
2002. Mr. Smith said that, in his opinion, the provision was entirely
procedural, not substantive. It does not create an additional substantive
benefit for the employee or any additional liability for the insurer. An
employee is entitled to reasonable and necessary treatment, no more, no
less. That does not change on January 1, 2002. The bill simply provides
another prospective process for determining whether treatment meets those
standards, in addition to the tiebreaker exam in s. 102.13.
Mr. Bagin moved that the
draft LRB 3500/P2 be jacketed for introduction as a legislative bill
without further changes. Mr. Glaser seconded the motion. The motion passed
Hundtermark said there would be companion bills introduced in the Senate
and Assembly with a joint hearing scheduled for 9:00 a.m. September 26,
Ms. Norman-Nunnery said
that staff and Council members agreed that Mr. Gordon Malaise, Senior LRB
Staff Attorney, had done an excellent job with some difficult material on
a tight timeline. She said the quality and responsiveness were very
helpful in meeting deadlines facing the Council and the Legislature. She
said her staff had recommended that in her role as Chair of the Council
she should send a thank-you letter to his supervisor. Mr. Bagin moved that
a letter be sent on behalf of the Council. Mr. Glaser seconded the motion.
The motion passed unanimously.
- Budget review.
DWD Secretary Jennifer Reinert reviewed the Governor ' s budget. She said
that in the past year she had been so impressed by the work and the
leadership that the Council provided. She said she was pleased that the
worker's compensation system had fared so well in the budget. The budget
approved the two additional ALJ positions, restored the turnover
allowance, and funded the information technology needs. She said she was
also glad that the Governor ' s veto message referenced the work that had
been done to avoid a veto relating to chiropractic care. She said the
interested parties seemed to agree that a clarifying trailer bill would
remove some uncertainty about the intent of some provisions.
Mr. Glaser said that on
behalf of the labor representatives he appreciated her support for adding
ALJ positions to reduce the backlog of litigated cases to six months. He
also thanked Ms. Norman-Nunnery, Mr. Smith and Mr. O ' Malley for their
dedication to the Council process. He said the Department provided a lot of
assistance in the process.
Mr. Bagin said that his
company works in many other states and that the cordial access into the
administrative process which the Division provides is a key. He said that we
may not always agree with the Division on the details of administration, but
we are consulted and listened to. Mr. Buchen agreed that both sides get
non-partisan assistance from the Department.
Mr. Glaser said the process
is based on trust. We trust the Department to be neutral. The legislature
trusts us to work on the important issues. Mr. Bagin said that the Council
members have often commented that it might be difficult to start the Council
system from scratch today. Ms. Reinert agreed that the long tradition of
good-faith discussion is an important foundation.
Ms. Coakley asked if there
were anything that Ms. Reinert would ask of the Council. Ms. Reinert said
that she had come to fully trust the Council process and would only look to
members for their continued good advice and counsel.
Mr. Buchen asked if there
was any update on the safety issue. Ms. Norman-Nunnery said Mr. Dan Murray
had been retained as a consultant to look at how we should proceed. He will
have recommendations in November. Ms. Reinert suggested that the Council
might want to visit the new Department of Commerce Secretary to discuss
whether they might still play a helpful role.
- Constituent Letters.
Ms. Norman-Nunnery asked the members to review two letters. Mr. Smith said
that his correspondence with Ms. Zwolinski had not resolved her concerns
and that she had requested an opportunity to discuss her concerns with the
Council. The Council requested that Mr. Smith advise her that she was
welcome to attend any meeting.
- Adjournment. Ms.
Norman-Nunnery said she would circulate a calendar to determine
acceptable dates for the future meetings. The Council adjourned subject
to the call of the Chair.