Chapter ETF 11

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;

ETF 11.05(5)(c) (c) Who is so sick, infirm or aged as to make it probable that the witness will not be able to attend the hearing; or,

ETF 11.05(5)(d) (d) Who is a member of the legislature, if any committee of the legislature or the house of which the witness is a member is in session, provided the witness waives his or her privilege.

ETF 11.05 Note Note: See s. 227.45 (7), Stats.

ETF 11.05(6) (6) A party may make a request for admissions as provided in s. 804.11, Stats.

ETF 11.05(7) (7) By advance written agreement between all parties, the oral or written deposition of a witness, as described by ss. 804.05 and 804.06, Stats., may be taken and used at the hearing in its entirety, so far as it is admissible under this chapter, as if the witness were then present and testifying.

ETF 11.05 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (2), (5) (a) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (4), (7) Register July 2012 No. 679, eff. 8-1-12.

ETF 11.06 ETF 11.06 Evidence at hearing.

ETF 11.06(1) (1) Privileges; rules of evidence. Rules of privilege recognized by law shall be given effect. However, common law or statutory rules of evidence do not apply except as provided in s. ETF 11.12 (2) (b) concerning hearsay. The hearing examiner shall admit all testimony having a reasonable probative value. The hearing examiner shall exclude from the record irrelevant, immaterial, or unduly repetitious testimony.

ETF 11.06(2) (2) Objections. Failure of a party to object on the record to admission of any evidence shall be deemed a waiver of that objection.

ETF 11.06(4) (4) Presumptions. In addition to any other presumptions under applicable law:

ETF 11.06(4)(a) (a) A signature purporting to be that of a participant, annuitant, named survivor, or beneficiary on a document previously accepted and filed by the department is presumed to be that of the participant, annuitant, named survivor, or beneficiary absent clear and convincing proof to the contrary.

ETF 11.06(4)(b) (b) A participant, annuitant, named survivor, beneficiary, insured or deferrer is presumed mentally competent at the time of making any application, election, designation or taking any other action affecting rights or benefits under ch. 40, Stats., accepted and acted upon by the department, whether affecting only the person or others. This presumption may be rebutted only by proof in the form of a certified copy of the judgment showing that, at the time of the event at issue, the person was adjudged incompetent with respect to management of his or her property.

ETF 11.06(4)(c) (c) For the purpose of determining timeliness of an appeal request, notice of the department determination is conclusively presumed to have been given to the addressee and all listed recipients of copies on the date the determination was sent by mail or e-mail. Absent clear and convincing proof to the contrary, the day the determination is dated is presumed to be the date the determination was sent by mail or e-mail. Absent clear and convincing proof to the contrary, a request for an appeal is presumed received on the day stated by the date stamp affixed to incoming department correspondence. If the request for an appeal is made by e-mail, the request is presumed to be received by the department on the date the e-mail enters the information processing system designated or used by the department for the purpose of receiving electronic mail provided the following are true:

ETF 11.06(4)(c)1. 1. The e-mail transmission is in a form capable of being processed by the department’s information processing system.

ETF 11.06(4)(c)2. 2. The department is able to retrieve the e-mail from the information processing system.

ETF 11.06(5) (5) Official notice. The hearing examiner shall take notice of all rules published in the Wisconsin administrative code or register and the written opinions of the attorney general. The hearing examiner may take official notice of any generally recognized fact or established technical or scientific fact, provided the parties are notified of the facts to be noticed and given opportunity to contest their validity.

ETF 11.06(6) (6) Department records. No additional identification or evidence of authenticity, beyond a statement or certification from a custodian or deputy custodian, is required as a pre-requisite for admitting into evidence documents or photocopies of documents from the department record of a particular participating employer, participant or annuitant, including beneficiary claim documents. When a photocopy of a departmental record is offered under this subsection, any party shall be permitted, upon request, to compare the photocopy and the original.

ETF 11.06(7) (7) Close of hearing and evidence. Evidence in any appeal shall be closed when due opportunity to furnish relevant evidence, including proper examination of witnesses and rebuttal, has been afforded to all parties. If by stipulation of the parties or direction of the examiner, documentary evidence is introduced after close of testimony, the evidence is closed when the document is received or when the specified time for furnishing it has expired without it being submitted. The examiner may extend the original time limit for filing documentary evidence. Before the examiner makes a proposed or final decision, the examiner may reopen the hearing for the taking of further evidence.

ETF 11.06 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 07-066: am. (1), Register March 2008 No. 627, eff. 4-1-08; CR 11-040: am. (4) (c) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: r. (3), am. (4) (a), (b) Register May 2021 No. 785, eff. 6-1-21; correction in (4) (a) made under s. 35.17, Stats., Register May 2021 No. 785.

ETF 11.07 ETF 11.07 Informal disposition.

ETF 11.07(1) (1) Disposition of an appeal under this section requires no further action by the hearing examiner or board. After the parties have informed the hearing examiner in writing that the appeal has been disposed of informally pursuant to this section, the hearing examiner shall forward the record to the appeals coordinator.

ETF 11.07(2) (2) An appeal may be resolved informally by an agreement between all parties to dismiss the appeal with or without prejudice. The department shall then make an order dismissing the appeal as agreed, attach it to the agreement and file it with the record.

ETF 11.07(3) (3) If the appellant withdraws the appeal, in writing, the appeal shall be immediately dismissed by the department. This dismissal shall be with prejudice if more than 90 days have elapsed from notice of the determination appealed from, or if an applicable time limit or statute of limitations expired while the dismissed appeal was pending.

ETF 11.07 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-044: am. (1) Register July 2012 No. 679, eff. 8-1-12.

ETF 11.08 ETF 11.08 Final disposition by hearing examiner.

ETF 11.08(1) (1) The hearing examiner’s findings, conclusions and order dismissing an appeal as provided in this section shall be the final decision of the board.

ETF 11.08(2) (2) The hearing examiner shall prepare and issue a dismissal, in the form and manner required by this chapter for a final decision, under the following circumstances:

ETF 11.08(2)(a) (a) If the examiner determines that a party has defaulted, resolving the issues on appeal, or that the appellant has failed to appear or pursue the appeal.

ETF 11.08(2)(b) (b) If the examiner determines that the appeal is wholly or partially time-barred for one or more of the following reasons:

ETF 11.08(2)(b)1. 1. The appeal was not filed within 90 days after the department determination appealed from was sent by mail or e-mail to the person aggrieved by the determination. The entire appeal shall be dismissed.

ETF 11.08(2)(b)2. 2. The issue is the classification of an employee as a protective occupation participant or participating employee and with respect to service rendered more than 7 years prior to the date the appeal is received by the department. Any portion of the appeal not time-barred may proceed. In s. 40.06 (1) (e) 1., Stats., and this subdivision only, “appeal ... received by the department” means the request by the employee to review the employer’s determination, not the challenge to the department’s resulting determination.

ETF 11.08(2)(b)3. 3. The appeal concerns a request to correct an alleged error with respect to service credits or contribution, premium or benefit payments and the request was made more than 7 full calendar years after the date of the alleged error or beyond another applicable limitation specifically provided by statute. If the alleged error is the result of fraud the applicable limitation is instead 3 years from the date the aggrieved person discovered the facts constituting the fraud. Any portion of the appeal not time-barred may proceed.

ETF 11.08(2)(b)4. 4. The appeal involves a claim barred by s. 41.04 (2) (c), 1979 Stats., or an applicable statute of limitation, including but not limited to ss. 893.43 and 893.93 (1m) (a), Stats. Any portion of the appeal not time-barred may proceed.

ETF 11.08(2)(c) (c) The appeal is moot. When an appeal seeks correction of an administrative error, and the department has acknowledged and corrected the error, the appeal, or the appropriate portion of the appeal, is moot. Any portion of the appeal not moot may proceed.

ETF 11.08(2)(d) (d) The appellant does not have a substantial interest affected by the determination made by the department.

ETF 11.08(2)(e) (e) There is no material issue of fact or law and under the undisputed material facts and law, the appellant is ineligible for the claimed right or benefit or fails to meet all the qualifications for the claimed right or benefit established by statute, administrative rule and applicable contract.

ETF 11.08(2)(f) (f) No issue has been identified which can be resolved by the hearing examiner or board under this chapter or ch. 40, Stats.

ETF 11.08(2)(g) (g) There is no remaining issue to be decided from the issues that are set forth in the department determination letter.

ETF 11.08(3) (3) In addition to final decision-making authority granted by sub. (2), the hearing examiner shall also make the final decision of the board if the issues on appeal are limited to one or more of the following:

ETF 11.08(3)(a) (a) The numeric result of a mathematical calculation by the department, not involving any challenge to the application of law in choosing the appropriate values or formulas used to make the calculation.

ETF 11.08(3)(b) (b) The amount of a reduction in duty disability benefits under s. 40.65, Stats., resulting from receipt of other benefits.

ETF 11.08(3)(c) (c) The appeal of denial of a disability annuity under s. 40.63, Stats., where the sole reason for the department’s denial was that the employer did not certify as provided in s. 40.63 (1) (c), Stats., that the employee’s leave of absence or termination was the result of the disability.

ETF 11.08(4) (4) The hearing examiner shall issue the final decision of an appeal if the board has adopted a motion delegating final decision making authority to the hearing examiner for that specific appeal.

ETF 11.08(5) (5) The hearing examiner shall not exercise final decision-making authority under sub. (2) (c), (d) or (e), (3) or (4), if the decision necessarily involves the interpretation of a statute, rule or clause of a contract authorized under ch. 40, Stats., which the examiner finds to be ambiguous. The hearing examiner shall prepare a proposed decision and allow the board to make the necessary interpretation.

ETF 11.08(5m) (5m) The hearing examiner shall issue the final decision of an appeal if each of the parties informs the hearing examiner in writing that they agree to have the appeal decided pursuant to a motion for summary judgment. The motion must be filed with the hearing examiner and include the signatures of the parties.

ETF 11.08(6) (6) The hearing examiner may issue a proposed decision if the grant of final authority under this section is not, in the examiner’s opinion, clearly applicable to the particular appeal before the examiner.

ETF 11.08 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (2) (b) 1. Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (2) (b) 1., cr. (2) (f), (g), (5m) Register July 2012 No. 679, eff. 8-1-12; correction in (2) (b) 4. made under s. 13.92 (4) (b) 7., Stats., Register November 2018 No. 755; CR 19-126: am. (2) (b) 3. Register May 2021 No. 785, eff. 6-1-21.

ETF 11.09 ETF 11.09 Proposed decision.