Workers' Compensation Advisory Council Feb.

8, 2006 minutes
Voting members: Sue Olson for James Cavanaugh Stan Daniels Wayne Ellefson Don Gerdesmeier Glen Johnson David Olson Reed Pollack Diane Edwards for Julie Schnell Gary Thaden Ray Waldron Voting members absent: Mike Hickey Brad Robinson Nonvoting members: Rep. Mike Nelson Nonvoting members absent: Sen. Tom Bakk Sen. Geoff Michel Rep. Denny McNamara Staff members: Kate Berger Scott Brener Debbie Caswell Jim Feckey Phil Moosbrugger John Rajkowski Patricia Todd Jana Williams Visitors: Rep. Bruce Anderson Craig Anderson; MWCIA Paul Cassidy; Leonard, Street Colleen Colburn; MCA Kevin Gregerson; Wilcox-McShane Corp Jan Hawkins; Target Corp Tom Hesse; MN Chamber of Commerce Penny Johnson; OAH Todd Johnson; WCRA David Kunz; MCA Brad Lehto; MN AFL-CIO Perry Lewis; Third Party Solutions Tammy Lohmann; Commerce Elizabeth Long; House Research Bob Lund: State Fund Mutual Brandon Miller; Ingenix John Nesse; Carpentry Contractors Assn Steve Novak Mark Pixler; MAPS Linda Sandvig; Alliance Health Katy Sen; DFL House Research Scott Sexton; Corvel Doug Stang; Lockridge, Grindal, Hauer Deneace Tucek; Health South David Wulff; MTLA

Commissioner Scott Brener called the meeting to order at 9:40 a.m. Roll was called. A quorum was present on both sides.

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II.

Approval of the minutes from the Dec. 14, 2006 meeting

Ray Waldron made a motion to approve the minutes from the Dec. 14, 2006 meeting. Glen Johnson seconded the motion. All voted in favor of the motion and it passed. IV. A. Commissioner's update Brener introduced John Rajkowski. He replaced Jamie Anderson as the department's government relations director. Jamie has moved on to private practice. Rajkowski formerly worked at DEED and, before that, at DTED. He has a decade of experience at the Legislature, specifically on the committees the Workers' Compensation Advisory Council (WCAC) works through. IV. B. WCAC bill discussion Rep. Bruce Anderson and his constituent, Randy Olson, briefed WCAC members about Olson's concerns with Minnesota's workers' compensation system. Brener noted the WCAC does not function like a court of law or arbitration. It is made up of the stakeholders in the workers' compensation system representing employees and employers. It focuses on problems with the system and serves as counsel to the Legislature regarding Chapter 176. Olson had two issues. First, the amount of money his attorney made on his case and Roraff attorney fees. Second, he had to wait two years to have a second surgery because the health care provider would not proceed even though his private health care insurer agreed to pick up the cost. Brener clarified that the law already requires the private health care insurer to cover medical costs and recover them if the workers' compensation insurer later accepts responsibility. He also pointed out that Minnesota Statutes §176.191 requires the general health care provider to provide service. Brener informed Olson of his ability to file a formal complaint. The department could then issue a temporary order, which allows the necessary treatment while liability is disputed. He noted the department could not do anything without a complaint. Olson stated he did seek help from DLI in the summer of 2004, but did not pursue filing a complaint because there are not many spinal clinics and surgeons available and he feared repercussions. Kate Berger, an attorney from the department's Legal Services unit, was introduced and briefed the council about the relevant provisions in the law. In response to an inquiry from a member, it was noted there is nothing in the workers' compensation law to penalize a health care provider as a result of this practice. Therefore, DLI has approached this situation as an opportunity to educate the health care provider about these provisions in the statute. Brener stated that the provisions in the statute were communicated to Olson's health care provider. Brener noted DLI attempted to address Roraff and Heaton attorney fees in 1995. He offered to pursue attorney fee issues if the WCAC so desired. Reed Pollack shared his opinion about why health care providers might delay treatment until the workers' compensation insurer approved it. The general health care insurer pays a lower rate than a workers' compensation insurer for the same treatment. He suggested

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that if the playing field were "leveled," this would not occur. He pointed out the potential for the WCAC to make a recommendation. Gary Thaden distributed copies of the Union Construction Workers' Compensation Program motion in support of changes to the workers' compensation law that would bring equity between the medical benefit payment systems for workers' compensation and traditional health care. Legislative proposals Brener reviewed a list of legislative proposals. Copies were in members’ meeting packets. The proposals are the following. Ray Waldron 1. Consideration of repeal of the 104-week limitation on temporary total disability benefits. Whether revisions should be made in the Social Security offset of permanent total disability benefits to ensure no one falls below the supplementary benefit rate. Increase the cost-of-living adjustments. Increase the maximum compensation rate. Limit independent medical examinations (IMEs) when an employee goes only to the employer’s/insurer’s doctor. Review the North Dakota reciprocity agreement passed last legislative session.

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6.

Department of Labor and Industry 1. Adopt a fee schedule for payment of facility fees for outpatient ambulatory surgeries based on a reimbursement method used by Medicare. Pay small/rural hospitals based on federal critical access hospital (CAH) status and modify the maximum fees for outpatient services at a CAH. Permit the fee schedule to be updated by reference to the Medicare fee schedule, maintaining cost neutrality if the cost increases due to changes in the Medicare fee schedule. Apply the fee schedule to providers in states that border Minnesota. Permit the SCF to recover certain costs and attorney fees from uninsured employers. Amend the data practices law to ensure that workers’ compensation employer, insurer and employee data is not public, with exceptions for: mandatory insurance coverage information; state investigations; statistical reports and studies, litigation decisions, reports required by law and final orders in enforcement actions. Data would also continue to be available to the parties to a workers’ compensation claim.

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3.

4. 5.

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Office of Administrative Hearings 1. Repeal Minnesota Statutes §176.155, subd. 2, which permits the commissioner, a compensation judge or the Workers’ Compensation Court of Appeals to appoint a neutral physician to examine the employee. Amend Minnesota Statutes §176.421, subd. 4, to allow fax filing of a Notice of Appeal to the Workers’ Compensation Court of Appeals.

2.

Minnesota Workers’ Compensation Insurers Association 1. Permit insurers to give 30 days advance notice of cancellation of a policy for nonpayment of premium, instead of the 60-day notice required for all other types of cancellation.

Brener pointed out the WCAC had three weeks to come up with a legislative bill. Johnson suggested the WCAC forego a bill this year, research these issues in depth so they could make an informed decision and come up with a comprehensive bill next year. Discussion followed. David Olson said these are not new issues to the other members and Brener asked members to work through what they can in the next few weeks. Olson was convinced they could work something out and pass a bill this year. He and Waldron made a commitment to make time for these discussions. Stan Daniels suggested the WCAC talk to Minnesota employees and employers regarding their concerns with the workers' compensation system. Olson wanted to continue work on the bill, but did not preclude going outstate. Pollack introduced Pete Thrane, the legislative counsel for the Minnesota SelfInsurers' Association (MSIA). He made WCAC members aware MSIA is working on statutory language about data reporting requirements for self-insurers. These changes would occur in the Department of Commerce's Chapter 79. David Olson made a motion to adjourn at 11:17 a.m. Thaden seconded the motion. All voted in favor of the motion. Respectfully submitted, Debbie Caswell Executive Secretary dc/s