Chapter ETF 11

ETF 11.02(14) (14) “Respondent” with respect to an appeal means the department of employee trust funds. In addition:

ETF 11.02(14)(a) (a) The employer is a respondent in the appeal of a department determination which was based on the employer’s determination that a person is not a participating employee or protective occupation participant or based on the employer’s certification, or failure to certify, under s. 40.63 (1) (c), Stats.

ETF 11.02(14)(b) (b) The insurer and administrative agent are respondents in the appeal of a department determination affecting any right or benefit under any group insurance plan provided under ch. 40, Stats., except that the department shall represent the interests of the public employee trust fund as insurer.

ETF 11.02(15) (15) “Substantial interest” means, with respect to an appeal under this chapter, a direct and material interest in the particular determination made by the department, which interest is specially and adversely affected, either by the particular determination itself or by the result sought by the appellant of that determination, beyond the effect common to other similarly situated persons. The term does not include a derivative, indirect or mere nominal interest.

ETF 11.02 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; renum. (1) to be ETF 10.01 (1h), Register, July, 1999, No. 523, eff. 8-1-99; CR 11-040: renum. (9), (10), (11), (12), (13) to be (11), (12), (13), (14), (15), cr. (9), (10) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (3), cr. (3m), am. (8) Register July 2012 No. 679, eff. 8-1-12.

ETF 11.03 ETF 11.03 Process and proceedings.

ETF 11.03(1) (1) Limitations on appeals. In addition to the requirements under sub. (3), the following time limitations apply to appeals:

ETF 11.03(1)(a) (a) An appeal seeking correction of an alleged error with respect to service credits or contribution, premium or benefit payments is barred unless commenced within 7 years after the date of the alleged error, except as some other limitation is specifically provided by statute or this chapter. Where an alleged error has been incorporated in department records and relied upon in subsequent administration of ch. 40, Stats., benefits, the date of the alleged error for the purposes of this section and s. 40.08 (10), Stats., is the earliest date on which the aggrieved person discovered, or should reasonably have discovered, the alleged error.

Example: If an alleged error involves creditable service for a given year, and the amount of service credited was first reported to the participant on an annual statement the following year, the date of the alleged error is the date of the report to the participant, not a subsequent date on which the alleged error in creditable service is used to calculate retirement benefits or repurchase of forfeited service

ETF 11.03(1)(b) (b) Notwithstanding par. (a), an appeal seeking correction of an alleged error with respect to service credits or contribution, premium or benefit payments, based on a claim of fraud, is barred unless commenced within 3 years from the date of the discovery by the aggrieved person of the facts constituting the fraud.

ETF 11.03 Note Note: See ss. 40.08 (10) and 893.93 (1m) (b), Stats.

ETF 11.03(1)(c) (c) All other appeals are barred unless commenced within the appropriate statutory limitation period, including but not limited to those provided by ss. 893.43 and 893.93 (1m) (a), Stats.

ETF 11.03(1)(d) (d) An appeal barred by operation of s. 41.04 (2) (c), 1979 Stats., or similar predecessor statute, is barred regardless of longer time limits set by s. 40.08 (10), Stats., or this section.

ETF 11.03(1m) (1m) Limitation on requesting department determination. An employee’s appeal to the department under s. 40.06 (1) (e) 1., Stats., of an employer’s classification, or denial of classification, as a teacher, protective occupation participant, or other classification specified by the department must be made within 90 days after the employer notifies the employee of the classification action, the right to appeal and this time limit. An appeal of a protective occupation participant classification reviewed by the office of state employment relations under s. 40.06 (1) (dm), Stats., must be made to the department within 90 days after the employee is notified by the office of state employment relations of its determination, the right to appeal and this time limit.

ETF 11.03(2) (2) Limitations on board remedies. Limitations on the boards’ powers include the following:

ETF 11.03(2)(a) (a) The deferred compensation board, group insurance board, teachers retirement board and Wisconsin retirement board have no equity powers. The employee trust funds board has no equity powers, except as provided under s. 40.03 (1) (a), Stats., to correct inequity in the computation of the amount of an annuity or death benefit resulting from a participant’s combination of full-time and part-time service, a change in annual earnings period during the high years of earnings or the previous receipt and termination of an annuity.

ETF 11.03(2)(b) (b) In accordance with the limitations on board remedies established by ch. 40, Stats., a right or benefit may not be granted by the board as the result of an appeal unless under the facts proven and the provisions of ch. 40, Stats., and other applicable law, the appellant is eligible for the right or benefit, and meets all qualifications established by statute, administrative rule and any applicable contract authorized by ch. 40, Stats., as of the commencement of the appeal. Erroneous or mistaken advice or negligence in performance of a duty may not be the basis for granting a right or benefit to an appellant under ch. 40, Stats.

ETF 11.03(2)(bm) (bm) There is no remedy in an appeal before a board based on a theory of undue influence. Regardless of proof offered by an appellant, the board may not change or void any choice, designation, application or other action of a participant, annuitant, beneficiary, insured, or deferrer on the grounds that person was acting under the undue influence of another. Nothing in this paragraph shall be construed to prevent an aggrieved party from bringing an action against the beneficiary of the alleged undue influence in a court of competent jurisdiction and seeking any remedy available under the law.

ETF 11.03(2)(c) (c) In an appeal involving a right or benefit under a group insurance plan provided under ch. 40, Stats., the group insurance board may grant the right or benefit claimed, including payment of a claim at issue, only if the public employee trust fund is the insurer. With respect to other insurers, the group insurance board may treat a continued failure of the insurer to grant a right or benefit awarded in the board’s final decision as a breach of the insurer’s contract with the board.

ETF 11.03(2)(d) (d) The group insurance board may not hear an appeal of a group health insurance issue involving a group health plan other than the standard plan unless the appeal involves a provision of the contract between the group insurance board and the insurer or a provision of the board’s guidelines for comprehensive medical plans seeking group insurance board approval to participate under the state of Wisconsin group health benefit program. Otherwise, the dispute is directly between the insured and the insurer and does not involve the department or the board.

ETF 11.03(2)(e) (e) When the group insurance board has contracted with an insurer other than the public employee trust fund, the board may not hear the appeal of a group insurance issue which the contract reserves to the insurer for determination.

ETF 11.03(3) (3) Determination; timely appeal. An appeal is not timely unless the request is received within 90 days of the date a written determination was mailed to the person aggrieved by the department determination. A request which fails to meet this requirement is untimely. An appeal may not be commenced on an untimely request. The department shall notify a person making an untimely appeal request.

ETF 11.03(3m) (3m) New determination; new time limits. The department may internally review a previous determination made by the department. If the department then issues a new determination that revises the original determination, reaches a different result from the original determination, or relies upon different material facts or law from those stated in the original determination, any person aggrieved by the new determination shall have 90 days from its issuance to request an appeal.

ETF 11.03(4) (4) Commencement of appeal. An appeal is commenced upon receipt of a request for review of the department determination provided the request meets the following requirements:

ETF 11.03(4)(a) (a) The request is in writing. No appeal may be commenced based upon an oral request. The requestor may, but is not required to, file the request for an appeal by using form ET-4938, “Appeal Form.”

ETF 11.03 Note Note: The Appeal Form can be obtained at no charge by writing to: department of employee trust funds, P. O. Box 7931, Madison, WI 53707-7931, or by calling: [phone] or toll free at [phone]. The form also is available on the department’s website: etf.wi.gov.

ETF 11.03(4)(b) (b) The request identifies the particular department determination being challenged and the factual and legal basis for the appeal, including specifically identifying the particular material facts and legal interpretations underlying the department determination which the appellant believes are erroneous. Any question about the sufficiency of the pleading under this paragraph shall be resolved by the hearing examiner at the pre-hearing conference.

ETF 11.03(4)(c) (c) The request for an appeal is mailed, sent by e-mail, sent by facsimile, or delivered to the appropriate board in care of the appeals coordinator at the department of employee trust funds by the person requesting the appeal. Appeal requests received which erroneously name a board with respect to a subject matter reviewed by another board shall be redirected to the appropriate board by the appeals coordinator.

ETF 11.03(4)(d) (d) The request for an appeal is a timely appeal.

ETF 11.03(4)(e) (e) The person requesting the appeal has a substantial interest in the determination made by the department. Any question about the appellant’s interest shall be resolved by the hearing examiner at the earliest opportunity.

ETF 11.03(5) (5) Case file. Upon commencement of an appeal, the department shall open a case file for the hearing examiner, consisting of copies of the determination made by the department and the appeal request by the appellant, including any attachments and referenced documents.

ETF 11.03(6) (6) Contested case. An appeal to the board shall be treated as a class 3 contested case.

ETF 11.03(7) (7) Parties. Only a person with a substantial interest in the particular issue to be decided, as it affects the specific participant, annuitant, beneficiary, employer, insured, insurer or deferrer may be an appellant or a party to the appeal. No person without a substantial interest may be admitted as a party. When an appeal is filed, the department shall notify any respondent or other person known to have a substantial interest directly affected by an issue raised in the appeal, including the following persons:

ETF 11.03(7)(a) (a) The department shall be a party to each appeal of a determination made by the department.

ETF 11.03(7)(b) (b) In an appeal concerning a participant’s or annuitant’s death benefits, the interested parties include any beneficiary with a direct interest in the death benefits not yet paid by the department or insurer as they may be calculated or distributed as a result of either the department determination or the board’s final decision on the issues raised by the appeal.

ETF 11.03(7)(c) (c) In an appeal concerning disability benefits under s. 40.63, Stats., or the determination of participating employee or protective occupation participant status, the interested parties include the participant, or the appellant claiming the status of participating employee, and the employer. The office of state employment relations is deemed to be the employer if the appeal involves a state employee claiming the status of a protective occupation participant.

ETF 11.03 Note Note: See s. 40.06 (1) (dm), Stats.

ETF 11.03(7)(d) (d) In an appeal concerning a program in which an administrative agent is involved, the administrative agent may participate as a party.

ETF 11.03(7)(e) (e) In an appeal of a group health insurance determination, the insurer is an interested party.

ETF 11.03(8) (8) Burden of proof. The appellant shall have the burden of proceeding and the burden of proving each element necessary to establish that the appellant is entitled to, and has fully qualified for, the claimed right or benefit provided by ch. 40, Stats.

ETF 11.03(9) (9) Agent for a party. Any party may appear in person or by an attorney or agent provided the following requirements are met:

ETF 11.03(9)(a) (a) Any person who appears as an agent for a party, other than the registered agent of a participating employer or an attorney, shall obtain and file with the department an original power-of-attorney signed by the party authorizing the agent, as attorney-in-fact, to act in all matters involving the appeal with the same authority and effect as the party personally. The person officially designated by a participating employer as its registered agent to represent the employer to the Wisconsin retirement system is deemed to have full authority to act for the participating employer regarding the appeal.

ETF 11.03(9)(b) (b) Any party represented by an attorney or agent, other than the department or the participating employer, shall file a written authorization in the form prescribed by the department for the disclosure of confidential personal information to the agent or attorney, to the same extent as is authorized to the party under s. 40.07, Stats., and s. ETF 10.70. The authorization shall be part of the appropriate participant file.

ETF 11.03 Note Note: The “Limited Power-Of-Attorney For Appeal” form, ET-4944, “Authorization To Disclose Non-Medical Individual Personal Information” form, ET-7406, and “Authorization To Disclose Medical Information” form, ET-7414, required by ch. ETF 11 may be obtained at no charge by writing to: department of employee trust funds, P. O. Box 7931, Madison, WI 53707-7931, or by calling: [phone] or toll free at [phone]. The forms also are available on the department’s website: etf.wi.gov.

ETF 11.03(10) (10) Notice. Notice of any hearing or pre-hearing conference shall be mailed to each party, or the party’s attorney of record, at least 10 days prior to the hearing or conference, respectively. The notice shall include:

ETF 11.03(10)(a) (a) The time, place and nature of the hearing or conference, including a statement that the case is class 3 contested case proceeding.

ETF 11.03(10)(b) (b) A statement of the legal authority and jurisdiction for the hearing.

ETF 11.03(10)(c) (c) A short and plain statement of the matters asserted. If specificity is not possible when notice is served, the notice may state issues involved.

ETF 11.03(11) (11) Pre-hearing conference. The hearing examiner shall hold a pre-hearing conference for the purpose of determining the proper parties, defining the issues to be resolved, identifying the material factual and legal disputes between the parties, setting a deadline for the parties to reach agreement on a stipulation of facts or advising the examiner that they are unable to do so, and setting the date for the evidentiary hearing. The pre-hearing conference may be held by telephone with the call initiated by the hearing examiner. Following the pre-hearing conference, the hearing examiner shall prepare a memorandum to the parties summarizing the actions taken, amendments allowed to the pleading, recording agreements of the parties, specifying the issues to which the hearing is limited and making appropriate orders to the parties. This memorandum shall control the subsequent course of the appeal, unless modified at the hearing to prevent manifest injustice.

ETF 11.03(12) (12) Witness attendance; subpoena. Upon receipt of the notice of hearing, it is the responsibility of each party to contact any witnesses necessary for that party’s case and to make arrangements to have them attend the hearing. The hearing examiner or a party’s attorney of record may issue a subpoena to compel attendance of witness or production of evidence at hearing or at a deposition authorized under this chapter. Where a party is represented by an agent, rather than an attorney at law, the party shall request the hearing examiner to issue the subpoena. Witness fees shall be paid in advance as provided under s. 885.06, Stats., except witnesses for a state agency shall be paid in the manner provided by s. 885.07, Stats.

ETF 11.03(13) (13) Extension of time and postponement. Requests for postponements and continuances shall be considered by the hearing examiner only if received within a reasonable time before the date of the hearing. Postponements and continuances may be granted by the hearing examiner due to extraordinary circumstances and a postponement, continuance or extension of time may be granted upon the mutual agreement of all the parties.

ETF 11.03(14) (14) Hearing location. The evidentiary hearing shall be held at the offices of the hearing examiner except as may otherwise be necessary for the convenience of all parties to the appeal.

ETF 11.03(15) (15) Expedited appeal process. Requests for an expedited appeal process shall be considered by the hearing examiner upon receipt of a written request from a party to the appeal. The hearing examiner shall allow for written objections to be filed within ten days of the date that notice is sent to the parties that such a request has been received. Upon receipt of such a request, the hearing examiner shall schedule a pre-hearing conference for the specific purpose of discussing with the parties the reasons for the request, any objections, and a possible procedure for expediting the time period for issuing a final decision in the appeal. The hearing examiner may grant a request for an expedited appeal process based on financial hardship or other extraordinary circumstances demonstrated by a party. Following the pre-hearing conference, the hearing examiner shall prepare a memorandum to the parties summarizing the expedited process to which the parties have agreed and the hearing examiner has approved. If the parties did not reach an agreement during the pre-hearing conference, the hearing examiner may issue an order either approving or denying the request for an expedited appeal.

ETF 11.03(16) (16) Decision without holding a hearing. The parties may agree to have the appeal decided without holding an evidentiary hearing and on the basis of filing legal briefs with the hearing examiner. If there is such an agreement, the parties shall inform the hearing examiner in writing. Upon submission of the legal briefs by the parties, the hearing examiner shall prepare a proposed decision in the manner set forth in s. ETF 11.09.

ETF 11.03 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (4) (a), (b), (c) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (2) (b), (3m), (4) (b), (8), (11), cr. (14) to (16) Register July 2012 No. 679, eff. 8-1-12; correction in (1) (c) made under s. 13.92 (4) (b) 7., Stats., Register November 2018 No. 755; CR 19-126: am. (1) (b) Register May 2021 No. 785, eff. 6-1-21.

ETF 11.04 ETF 11.04 Hearing examiner.

ETF 11.04(1) (1) Examiner to hear appeal. A hearing examiner shall preside over each appeal to the board.

ETF 11.04(2) (2) Qualifications. The department shall contract with a person to serve as a hearing examiner. The person shall be an attorney or administrative law judge knowledgeable in administrative law practice and ch. 40, Stats., or similar statutory benefit programs, or a person deemed otherwise qualified by the board. No person who directly participated in making the determination appealed from may be designated or serve as hearing examiner.

ETF 11.04(3) (3) Impartiality. The hearing examiner shall perform all functions in an impartial manner. An examiner shall disqualify himself or herself with respect to a particular appeal if by reason of personal interest in, or knowledge of the determination appealed from, he or she is unable to act fairly or impartially. If bias of the hearing examiner is raised as an issue, the hearing examiner shall determine that issue as part of the appeal. The board shall appoint or contract with another hearing examiner if the original hearing examiner is disqualified.

ETF 11.04(4) (4) Powers. In addition to other powers expressly granted or delegated to the hearing examiner by this chapter, the hearing examiner may:

ETF 11.04(4)(a) (a) Administer oaths.

ETF 11.04(4)(b) (b) Issue, quash and enforce subpoenas.

ETF 11.04(4)(c) (c) Rule on offers of proof and receive relevant evidence at hearing.

ETF 11.04(4)(d) (d) Take a deposition authorized by this chapter.

ETF 11.04(4)(e) (e) Dispose of procedural requests or similar matters.

ETF 11.04(4)(f) (f) Limit testimony to only those matters which are disputed.

ETF 11.04(4)(g) (g) Rule on all objections and motions made prior to issuance of the proposed decision.

ETF 11.04(4)(h) (h) Require briefs.

ETF 11.04(5) (5) Duties. The hearing examiner shall have the following duties:

ETF 11.04(5)(a) (a) The hearing examiner shall conduct the hearing, and any pre-hearing conference.

ETF 11.04(5)(b) (b) For purposes of proceeding to a hearing, the hearing examiner shall determine the parties having a substantial interest in the appeal. The hearing examiner shall exclude as a party any person not having a substantial interest in the issues raised.

ETF 11.04(5)(c) (c) When authorized by this chapter or by motion of the board, the hearing examiner shall prepare the final decision in the form required by this chapter.

ETF 11.04(5)(d) (d) Except when authorized to make the final decision of an appeal, the hearing examiner shall prepare a proposed decision for the consideration of the board.

ETF 11.04(5)(e) (e) A hearing examiner who receives an ex parte communication, other than a communication described in s. 227.50 (1) (a) 1m. and (1) (am) 1. through 3., Stats., shall make a record of the violation, and notify all parties.

ETF 11.04(6) (6) Mailing address.

ETF 11.04(6)(a) (a) The hearing examiner’s mailing address, unless otherwise specified by the hearing examiner is:

c/o Appeals Coordinator
Department of Employee Trust Funds
P.O. Box 7931
Madison, Wisconsin 53707

ETF 11.04(6)(b) (b) A party sending any communication or document to the hearing examiner by mail, e-mail, or facsimile shall also provide a copy to each party, including the department. This requirement does not pertain to the appeals coordinator when submitting documents for the hearing examiner’s signature for subsequent mailing to all parties.

ETF 11.04(7) (7) Final decision-making authority. The hearing examiner shall make the final decision of the board only if authority to make the final decision is expressly delegated to the examiner in this chapter or if final decision making authority in a particular appeal is granted in a motion adopted by the board.

ETF 11.04(8) (8) Examiner’s file. In the course of presiding over the appeal, the hearing examiner shall maintain the official record of the appeal, as well as filing correspondence to the examiner relating directly to the appeal but not part of the record. The hearing examiner may delegate some or all of this responsibility to the appeals coordinator. After preparing the final or proposed decision, the hearing examiner shall forward the record and hearing examiner’s file to the appeals coordinator for the department. The examiner’s personal notes shall not be forwarded to the department and are not part of the official record. Disposition of the examiner’s personal notes is at his or her discretion.

ETF 11.04 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (6) (b) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (2), (8) Register July 2012 No. 679, eff. 8-1-12; CR 14-055: am. (5) (e) Register May 2015 No. 713, eff. 6-1-15; CR 19-126: am. (6) (b), (8) Register May 2021 No. 785, eff. 6-1-21.

ETF 11.05 ETF 11.05 Discovery. There is no right to take and preserve evidence prior to the hearing, except as provided in this section.

ETF 11.05(1) (1) No party to an appeal shall have access to individual personal information in the records of the department except as expressly authorized under s. 40.07, Stats., and this section.

ETF 11.05(2) (2) In an appeal of the denial of an application for a disability annuity or duty disability benefits under s. 40.63 (5) or (9) (d) or 40.65 (2) (b) 3., Stats., the department may provide the hearing examiner, employer, participant and any other party to the appeal with copies of any physician certifications under s. 40.63 (1) (d) or 40.65 (2) (b) 2., Stats., received in connection with the application.

ETF 11.05(3) (3) The department may disclose to the board’s hearing examiner individual personal information it deems both relevant to the appeal and required to be disclosed for the proper administration of a benefit program under ch. 40, Stats. Any information disclosed by the department under this subsection shall also be provided to the parties to the appeal. A person receiving information under this subsection shall maintain the confidentiality of the information.

ETF 11.05(4) (4) A party to the appeal may request that the hearing examiner review individual personal information in the records of the department in camera. If the hearing examiner determines that the information is relevant to the appeal and disclosure is required to assure proper administration of a benefit program under ch. 40, Stats., the examiner may order the department to disclose the information as provided in sub. (3).

ETF 11.05(5) (5) Testimony may be taken and preserved of a witness:

ETF 11.05(5)(a) (a) Who is beyond the reach of the subpoena of the agency, any other party, or the hearing examiner;

ETF 11.05(5)(b) (b) Who is about to go out of the state, not intending to return in time for the hearing;