Case Brief - County of Dane v. LIRC and Gloria Graham
Posted by: Bob Menard
December 28, 2009
Topic: Case Brief - County of Dane v. LIRC and Gloria Graham

County of Dane v. LIRC and Gloria Graham
306 Wis. 2d 830, 744 N.W. 2d 613

 

Key Facts:
          Gloria Graham was a Dane County food service worker, and on July 9, 2001 Graham slipped and fell on a wet floor while working. Her leg was twisted behind her back resulting in a significant knee injury. She had surgery but recovery did not go well, resulting in significant strength loss and pain in her knee. Graham cannot walk without a cane and has a pronounced foot-dragging limp.
          Dane County paid for temporary disability, permanent partial disability and medical expenses. However, Graham also sought disfigurement, which Dane County denied. Graham filed an application for hearing for that issue.

Prior Proceedings:
          The administrative law judge, LIRC, the Circuit Court and the Appellate Court all affirmed the awarding of the disfigurement benefit to Graham.

Issue:
          Is the result of Graham's workplace injury compensable under Wis. Stat. §102.56(1) for disfigurement?

Holding:
          The Supreme did agree with the previous proceedings and awarded the disfigurement benefit.

Reasoning:
          The issue at hand was if the workplace injury Graham sustained compensable for disfigurement as she claimed. The Supreme Court looked at precedent in LIRC, as well as the statutes plain meaning and statute history regarding disfigurement. The Court concluded that while LIRC is the agency in charge of worker's compensation laws application and review, the inconsistent decisions made regarding disfigurement, as brought before the Court by the respondent and petitioner (Spence v. POJA Heating & Sheet Metal Co., [LIRC Jan. 20, 1994]. Jorgensen v. Wisconsin Department of Veterans Affairs, [LIRC Oct. 10, 1986]) as well as the decision made in the current case of Graham, gave the LIRC decision no deference and therefore, the Court gave a de novo review of the agency's interpretation of the statute.
          The Court used Black's Dictionary to look up the definition of disfigurement, and found that disfigurement meant, " that which impairs or injuries the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect, or deforms in some manner." This definition was also used in an Illinois worker's compensation case decided by the Illinois Supreme Court. The Wisconsin Supreme Court concluded from that outside information that the plain meaning of disfigurement encompasses an impairment that significantly affects the appearance of a person.
          Statute history was looked at to determine the intent of the legislature for disfigurement claims. There had been a shift from disfigurement being focused on the face or head being permanently disfigured in 1915, to being not limited to a specific body part that would occasion potential loss of wage in 1971. The current amendment of 1978 included that if the appearance of an employee presents to others may cause the others to believe that the employee is less capable, that would be disfigurement.
          Looking at the previous information, the Court decided that four requirements must be satisfied in order for disfigurement to be awarded. First, the disfigurement must be permanent. Second, it must cause occasion potential wage loss and it must be taken into account the age, education, present occupation and earnings and the likelihood of suitable occupational change of the employee. Third, the disfigurement must occur in an area of the body that is exposed during the normal course of employment. And lastly, the appearance, location and likelihood of exposure in the occupation that the employee is suitable for must also be taken into account. If the four requirements are met, then the statute's plain meaning requires the employee to be compensated.
          In conclusion, the Court found that Graham did have a disfigurement, as she satisfied the four requirements of the statute.

Disposition:
          The Supreme Court affirmed the decisions of the Court of Appeals, Circuit Court and LIRC based on the plain meaning of the statute.

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Nurse Case Managers
Posted by: Bob Menard
November 18, 2009
Topic: Nurse Case Managers

Some of you may have a nurse case manager assigned to you by the insurance company. They are hired by the insurance company to maintain communication between the adjuster and the healthcare providers. This nurse follows your treatment plan by attending your appointments and contacting all of your doctors. They are assigned to help coordinate healthcare and speed the process from when you are injured to when you can return to work either full-time or part-time. They are also there to control costs.

Reducing costs can be detrimental to your health. These managers would like to minimize costs by getting you back to work as soon as possible, even if you or your doctor feel you are not capable of returning fully to work. A nurse case manager is not your advocate when care has been denied.

Please let us know as soon as possible if a nurse case manager has been assigned to your case. After we have been retained, we can decline his or her care for your case. You can then get the full extent of the care you need to help get you back to work and to life.

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Wisconsin Medical Costs Per Claim for Workers' Compensation Typical of Other Study States after Years of Being Lower, WCRI Study Reports
Posted by: Bob Menard
July 24, 2009
Topic: Wisconsin Medical Costs Per Claim for Workers' Compensation Typical of Other Study States after Years of Being Lower, WCRI Study Reports

CAMBRIDGE, Mass.--(BUSINESS WIRE)-- Medical costs per workers' compensation claim in Wisconsin shifted from being lower than other study states to being typical, according to a new study by the Workers Compensation Research Institute (WCRI).

The study, CompScopeTM Medical Benchmarks for Wisconsin, 9th Edition, found that for 2001 injuries with experience through the first quarter of 2004, employers in Wisconsin paid lower costs per claim than the median of 14 states in the WCRI study. By 2004/2007 however, employers in Wisconsin paid typical medical costs per claim compared to the other 13 study states.

WCRI attributed the shift in the average medical costs per claim in Wisconsin to a number of factors: faster growth in the medical costs per claim and among the highest nonhospital prices paid and hospital outpatient payments per service in Wisconsin compared to most of the study states.

Medical costs per claim rose more rapidly in Wisconsinthan in the other study states. For a period of five years (2001/2002 to 2006/2007) medical costs per claim grew 70 percent in Wisconsin while costs per claim in the other study states rose between 47 and 54 percent.

The main cost drivers in Wisconsin were rapid growth in prices paid for nonhospital services and payments per service for hospital outpatient services, according to the study.

The study pointed out that employers in Wisconsin paid among the highest prices for many procedures performed in a nonhospital setting.

For example, the price paid for the most frequently-billed nonhospital established patient office visit was $95 compared to $62 in the median state in the study; the price for the most common arthroscopic knee surgery was $3,035 in Wisconsin compared to $1,336 in the typical state; the price for an MRI was $1,997 in Wisconsin compared to $805 in the median state.

The study reported that prices paid in Wisconsin were not only substantially higher than the prices in the typical study state, but they were also higher compared to the prices paid in Iowa and Indiana""two study states that currently do not regulate prices. In general, higher nonhospital prices paid in Wisconsin were offset by lower utilization of medical services. Similar conclusions apply to hospital outpatient services.
Despite these higher prices paid and payments per service for services delivered in a hospital outpatient setting, injured workers in Wisconsin reported faster recovery and return to work along with better access and satisfaction with care, said the study.

WCRI observed that it might be reasonable for an employer to pay higher costs if workers in Wisconsin have improved outcomes over time. WCRI is currently conducting a survey of injured workers in Wisconsin to address this question.

The study also reported that in 2006/2007, medical costs per claim in Wisconsin increased by 11 percent, driven by growth in costs per claim to both nonhospital and hospital providers.

Medical cost per claim for nonhospital services grew as a result of a 5 percent increase in prices paid and a 5 percent increase in utilization of medical services.

Hospital outpatient cost per claim grew 10 percent in 2006/2007, driven by a 6 percent increase in the average payment per service and 4 percent growth in the number of services per claim. These growth rates were similar to the rates in previous years.

The Workers Compensation Research Institute is a nonpartisan, not-for-profit membership organization conducting public policy research on workers' compensation, health care and disability issues. Its members include employers, insurers, and governmental entities, insurance regulators and state administrative agencies, as well as several state labor organizations.

To order this report, go to the WCRI web site: www.wcrinet.org.

Workers Compensation Research Institute

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An important message from WAJ President Mark Thomsen
Posted by: Bob Menard
July 02, 2009
Topic: An important message from WAJ President Mark Thomsen

State budget bill passes, has implications for you and your clients

Dear WAJ Members:

The state budget bill is now history. With the stroke of the Governor's pen a series of important changes were enacted that will directly benefit many of our clients.

One of our priorities for this legislative cycle was to make significant changes in Wisconsin's auto insurance laws. In addition to the "Truth in Auto Insurance" provisions the budget also mandates auto insurance in Wisconsin, making New Hampshire the only state that does not require drivers to carry insurance. While WAJ did not make this a priority we urged passage of this provision once it was added to the budget in the State Senate.

The Governor did veto two auto insurance provisions we had advocated. The liability rate increases were to be phased in over a three-year period up to $100,000/$300,000/$25,000. While the first increase goes into effect in 2010 - $50,000/$100,000/$15,000 - the remaining two increases were vetoed. The rates will still be subject to a CPI increase every 5 years beginning in 2017. The elimination of the "drive other car" exclusion was also vetoed.

The budget also provides a provision that takes the regulation of medical record copying fees and places the rate into the statutes. This eliminates the requirement for the Department of Health and Family Services to conduct an administrative review of the rates every 3 years. This language also states that the medical bills are presumed to state the reasonable value of the services provided and that they are presumed reasonable and necessary for the care of the patient.

Thanks goes to all WAJ leaders and staff who worked so diligently on these issues. Without your strength to keep fighting and never giving up we would not be where we are today.

Take a minute to review the list of changes below. I am confident each of you will see the positive benefit of these efforts on behalf of you and your clients. I am hopeful that you will renew your commitment to the efforts of WAJ when called upon.

(The budget act, Act 28, is available online at http://www.legis.state.wi.us/. It is on the right side and designated, "2009 Budget Bill as vetoed (Act 28)" I have put the sections and page numbers after each provision, so you can find the provisions online.

Truth in Auto Insurance Provisions
1. Increase Minimum Automobile Liability Coverage: Jan. 2010 - $50,000/$100,000/$15,000 and subject to a CPI review every 5 years beginning in 2017. (Section 2962t, page 556)
2. UIM will be a required mandatory coverage. (Section 3161, page 590)
3. Increase in UM/UIM minimum coverage to $100,000/$300,000 per policy. (Sections 3159 & 3161, page 590)
4. Defines UIM coverage by comparing the negligent driver's liability insurance limit with the amount of damages (or injuries) actually sustained by the policyholder. (Section 3153, page 590)
5. Elimination of reducing clauses: Insurance companies will no longer be able to deduct the amount of insurance carried by a negligent driver from the uninsured/underinsured coverage purchased by the injured policyholder. This change will make sure injured drivers/passengers can access the full amount of insurance they have paid for when they need it. (Section 3171, page 592)
6. Prohibits anti-stacking provisions in automobile policies, except the policy may limit the number of vehicles covered up to three (3). (Sections 3168 and 3169, page 591)
7. Umbrella Coverage: Requires that the policyholder reject in writing the offer of UM/UIM coverage for umbrella or excess liability policies. (Section 3167, page 591)
8. Hit and run claims: Insurance companies will no longer be able to deny coverage for hit and run accidents because no physical contact occurred. Now with independent third party verification drivers who are injured will have access to UM coverage. (Section 3155, page 590)
9. Prohibits a health insurance plan from not providing coverage on the basis there is coverage under a liability insurance policy. (Section 3197, page 595)
Effective Date: The changes will first apply to motor vehicle insurance policies that are issued or renewed on the first day of the 5th month after publication. Publication is July 1, 2009. (Section 9326(6), page 680 and Section 9426(2) on page 688)

Health Care Copying Costs:
Statutory Limits on Medical Record Copying: Sets the rates in the statute.
1. For paper copies, 35 cents per page.
2. For microfiche or microfilm copies, $1.25 per page.
3. For a print of an X-ray, $10 per image.
4. For certification of copies, $5.
5. For processing and handling, a single $15 charge for all copies requested.
6. Actual shipping costs. (Section 2433e, page 489)
If a patient is requesting his or her own medical records, there is no processing or handling fee. (Section 2433d, page 489) In addition, if your client is medically indigent, they are entitled to one free copy of their medical records. (Section 2433(d)2, page 489)

NOTE: One provision concerning the cost of requesting electronic records was vetoed. Because we are not sure of that implication, the WAJ office is recommending that attorneys request paper copies of all medical records at this time.

In addition, under Wis. Stat. 908.03 (6m) the definition of health care providers was broadened to include all health care providers under 146.81(1) and the billing statements and invoices are presumed to state the reasonable value of health care services provided and are presumed reasonable and necessary to the care of the patient. (Section 3285gb, pages 614-15)

Effective Date: These provisions go into effect on July 1, 2009. (Section 9322(9c), page 680 and Section 9400, page 685)

I look forward to seeing you in Door County at the WAJ Summer Seminar July 10-11 to update you on what additional programs and legislative initiatives we have planned and to hear your views.
Sincerely,
Mark
Mark L. Thomsen
WAJ President

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Importance of Documentation
Posted by: Bob Menard
June 17, 2009
Topic: Importance of Documentation

Please remember that documents, such as the accident report and your medical records, are keys to your case. These documents can get you the benefits that are due and owing to you.

The accident report must be made with your employer as soon as possible. Document exactly how the accident happened and what body parts was injured. Notify your superior as soon as the accident occurs, so that the documentation process can begin immediately.

Medical records are the most important documents for your case. They are vital to your worker's compensation case, as they are the evidence of the cause of the injuries, evidence of the injuries that occurred, as well as the extent of the injuries. Please be sure to tell your health care provider that this injury occurred at work. Some clients forget to tell their doctors that their injuries occurred at work, and this can become a problem later on.

Keep in mind that documents, such as medical records, are vital to your case and are the means of support that will get you the benefits you are owed.

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