Chapter HA 4

HA 4.03 Note Note: Substantive rules of the department dealing with worker’s compensation have the force and effect of law in worker’s compensation and related proceedings before the division. These include, without limitation, the factors listed in s. DWD 80.34 in determining loss of earning capacity, the factors listed in s. DWD 80.39 in determining whether to order full or partial payment of unaccrued compensation to an employee or his or her dependents under s. 102.32 (6m), Stats., the provisions of s. DWD 80.43 in determining the amount of attorney fees and costs under s. 102.26 (3), Stats., and the factors set out in s. DWD 80.49 (9) (b) in determining whether an offer of employment is suitable under s. DWD 80.49 (8) (c) and (9) (b).

HA 4.03 History History: CR 18-059: cr. Register July 2019 No. 763, eff. 8-1-19.

HA 4.04 HA 4.04 Procedure on claim.

HA 4.04(1) (1) In cases of disputes in matters coming under the jurisdiction of ch. 102, Stats., or s. 40.65, 59.88 (3), 62.624 (2), 106.25, 303.07 (7), or 303.21, Stats., and s. 66.191, 1981 Stats., any party to the dispute may apply to the department for relief.

HA 4.04(2) (2) In all such cases under sub. (1), the applicant shall file his or her application with the department, along with sufficient copies of the application for service on the respondents. The department shall thereupon serve the respondents with a copy of the application and the respondents shall file an answer to the application with the division within 20 days after the service and likewise serve a copy of the answer on the applicant. If no answer is mailed by the respondent within 20 days of service of the application by the department, the division may issue an order by default, without hearing, in accordance with the application, as provided by s. 102.18 (1) (a), Stats.

HA 4.04 Note Note: See s. 102.17, Stats.

HA 4.04(3) (3) After an application for hearing is served, the division shall manage its caseload by appropriate action including any of the following:

HA 4.04(3)(a) (a) Determining whether any answer received is complete, identifies the correct date of injury, and identifies the correct parties for that date of injury.

HA 4.04(3)(b) (b) Filing documents or other material received or issued in connection with the claim.

HA 4.04(3)(c) (c) Controlling its calendar and scheduling matters for hearing.

HA 4.04(3)(d) (d) Notifying the parties of the time and place of hearing, at least 10 days prior to the hearing.

HA 4.04(3)(e) (e) Conducting hearings and making findings, orders, and awards that are lawful and just under the circumstances.

HA 4.04(4) (4) After an application for hearing is served, the division, when appropriate, may take other action to manage its caseload, including any of the following:

HA 4.04(4)(a) (a) In cases of vision loss and hearing loss, obtaining a computation of permanent disability indemnity.

HA 4.04(4)(b) (b) Impleading other employers or insurance carriers.

HA 4.04(4)(c) (c) Securing the participation of the uninsured employers fund or the work injury supplemental benefit fund.

HA 4.04(4)(d) (d) Dismissing parties improperly served with the application.

HA 4.04(4)(e) (e) Dismissing the application if defective or upon request of a party.

HA 4.04(4)(f) (f) Scheduling and conducting prehearing conferences.

HA 4.04(4)(g) (g) Adjourning or postponing prehearing conferences and hearings scheduled under par. (f) and sub. (3) (c).

HA 4.04(4)(h) (h) Within 21 days of issuance, setting aside, reversing, or modifying findings, orders or awards as provided in s. 102.18 (3), Stats.

HA 4.04(5) (5) For injuries for which an employer is required to give notice under s. DWD 80.02 (1) (a), a self-insured employer or insurance company shall, when submitting a stipulation or compromise to the division, and at the time of hearing, submit a current form WKC–13 indicating all worker’s compensation payments to date and the periods of time for which these payments were made. This subsection does not apply if the information has been submitted via electronic, magnetic or other reporting media under s. DWD 80.02 (3m).

HA 4.04 History History: 1-2-56; am., Register, April, 1975, No. 232, eff. 5-1-75; am. Register, September, 1982, No. 321, eff. 10-1-82; am. (1), Register, September, 1986, No. 369, eff. 10-1-86; CR 02-094: am. (1) Register November 2002 No. 563, eff. 12-1-02; renumbered from DWD 80.05 under s. 13.92 (4) (b) 1., correction under s. 13.92 (4) (b) 6., Stats., Register May 2018 No. 749; CR 18-059: am. (1), (2), cr. (3), (4), (5) Register July 2019 No. 763, eff. 8-1-19, correction in (1) made under s. 35.17., Stats., Register July 2019 No. 763.

HA 4.05 HA 4.05 Appearance by attorney or agent; license to appear.

HA 4.05(1) (1) Any party may appear before the division in person or by an attorney or agent.

HA 4.05(2) (2) The following rules shall govern the issuance, suspension, or revocation of licenses to appear before the division in compensation matters under the provisions of s. 102.17 (1) (c), Stats.:

HA 4.05(2)(a) (a) Permission to appear at a single hearing may be issued by the division through any examiner upon application evidencing qualifications provided by statute and the division’s rules. Such permission may be given to appear in 3 cases before the issuing of license. When appearance has been made in 3 cases, license shall be required, which shall be issued only upon execution and filing with the division of application upon form prescribed by the division.

HA 4.05(2)(b) (b) Before license shall be issued applicant shall have appeared in representation of a party before the division on at least 3 formal hearings.

HA 4.05(2)(c) (c) The following conditions shall operate as grounds for refusal, suspension, or revocation of license:

HA 4.05(2)(c)1. 1. Charging of excessive or unconscionable fees, misrepresentation of clients, dishonesty, fraud, sharp practice, neglect of duty, or other improper conduct in the representation of a party before the division, unless satisfactorily explained or excused by the division on the grounds of subsequent good conduct.

HA 4.05(2)(c)2. 2. Disbarment from the practice of law, or resignation by request of properly constituted authorities, unless there has been subsequent reinstatement and continuance in good standing.

HA 4.05(2)(c)3. 3. Contumacious conduct in hearing, gross discourtesy toward division representatives, or failure to conform to rulings or instructions of the division or its representatives.

HA 4.05(2)(c)4. 4. Intentional or repeated failure to observe provisions of the compensation act or rules of procedure adopted by the division.

HA 4.05(2)(c)5. 5. Any other gross evidence of lack of good moral character, fitness or act of fraud, or serious misconduct.

HA 4.05 History History: CR 18-059: cr. Register July 2019 No. 763, eff. 8-1-19; (1), (2) renumbered from HA 4.05, DWD 80.20 under s. 13.92 (4) (b) 1., Stats., (title) amended under s. 13.92 (4) (b) 2., Stats., correction in (2) (intro.), (a), (b), (c) 1., 3., 4. made under s. 13.92 (4) (b) 6., Stats., and correction in (2) (intro.), (c) (intro.) made under s. 35.17, Stats., Register May 2022 No. 797.

HA 4.06 HA 4.06 Service and filing.

HA 4.06(1) (1) Service. Service of materials, unless otherwise directed by the division or by law, may be made by mail and proof of mailing shall be prima facie proof of service. The time within which service shall be made shall be the same as in courts of record unless otherwise specified by rule or order of the division.

HA 4.06(2) (2) Filing date. Regardless of how served, materials submitted to the division are considered filed on the date they are received by the division.

HA 4.06 History History: CR 18-059: cr. Register July 2019 No. 763, eff. 8-1-19.

HA 4.07 HA 4.07 Amendments. Amendment may be made to the application or answer by letter mailed to the division prior to the date the notice of hearing is mailed. Copies of the letter shall be sent directly to the other parties. The letter shall state reasons for the amendment.

HA 4.07 History History: 1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75; r. and recr. Register, September, 1982, No. 321, eff. 10-1-82.; renumbered from DWD 80.08 (1) under s. 13.92 (4) (b) 1., correction under s. 13.92 (4) (b) 6., Stats., Register May 2018 No. 749; CR 18-059: am. Register July 2019 No. 763, eff. 8-1-19.

HA 4.08 HA 4.08 Witness attendance; extension of time and postponement.

HA 4.08(1) (1) 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.

HA 4.08(2) (2) Requests for postponements or continuances shall be considered by the division only if such requests are received within a reasonable time before the date of the hearing.

HA 4.08(3) (3) The division shall grant postponements and continuances only because of extraordinary circumstances. Neither the scheduling problems nor the convenience of the parties shall be considered extraordinary circumstances.

HA 4.08(4) (4) A postponement, continuance, or extension of time may not be granted upon the mutual agreement of the parties without the consent of the division.

HA 4.08 History History: 1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75; r. and recr. Register, September, 1982, No. 321, eff. 10-1-82; renumbered from DWD 80.09 under s. 13.92 (4) (b) 1., correction in (2), (3), (4) under s. 13.92 (4) (b) 6., Stats., Register May 2018 No. 749; CR 18-059: am. (2), (3), (4) Register July 2019 No. 763, eff. 8-1-19.

HA 4.09 HA 4.09 Stipulations. Parties to a controversy may stipulate the facts in writing, and the division may make its order or award upon the written stipulation. Stipulations must set forth in detail the manner of computing the compensation due and must be accompanied by a report from a physician stating the extent of the disability.

HA 4.09 History History: CR 18-059: cr. Register July 2019 No. 763, eff. 8-1-19.

HA 4.10 HA 4.10 Depositions. Depositions may be taken and used in any hearing only in accordance with s. 102.17 (1) (f), Stats. These depositions shall be taken in the same manner as in courts of record. Depositions for the purpose of discovery before the hearing are specifically prohibited.

HA 4.10 History History: 1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75; am. Register, September, 1982, No. 321, eff. 10-1-82; renumbered from DWD 80.11 under s. 13.92 (4) (b) 1., Register May 2018 No. 749.

HA 4.11 HA 4.11 Rules of practice; selection of hearing site.

HA 4.11(1) (1) 

HA 4.11(1)(a) (a) The rules of practice before the division shall be such as to secure the facts in as direct and simple a manner as possible.

HA 4.11(1)(b) (b) The administrative law judge may limit testimony to only those matters which are disputed.

HA 4.11(1)(c) (c) The administrative law judge may not allow into the record, either on direct or cross–examination, redundant, irrelevant or repetitive testimony. Hearsay testimony with probative value may be admitted at the discretion of the administrative law judge.

HA 4.11(2) (2) The division may select places for a hearing after considering the geographical location and volume of claims in an area. A list of sites will be furnished upon request to interested parties by the division. From this list, a hearing site shall be selected at the discretion of the division. The division, in determining the site of the hearing, shall consider all of the following:

HA 4.11(2)(a) (a) The applicant’s location choice.

HA 4.11(2)(b) (b) The location of the office of the treating practitioner or practitioner appointed under s. 102.13 (3) or 102.17, Stats.

HA 4.11(2)(c) (c) The location where the injury occurred.

HA 4.11 History History: Cr. Register, August, 1976, No. 248, eff. 9-1-76; r. and recr. Register, September, 1982, No. 321, eff. 10-1-82; renumbered from DWD 80.12 under s. 13.92 (4) (b) 1., correction in (1) (intro.), (2) (intro.), (b) under s. 13.92 (4) (b) 6., Stats., correction in (2) (b) under s. 35.17, Stats., Register May 2018 No. 749; CR 18-059: am. (1) (a), (b), (c), (2) (intro.), (a), (b) Register July 2019 No. 763, eff. 8-1-19.

HA 4.12 HA 4.12 Audio recording of formal hearings.

HA 4.12(1) (1) 

HA 4.12(1)(a) (a) A party to a claim may audio record the proceedings of a formal hearing in a non-disruptive and non-obstructive manner.

HA 4.12(1)(b) (b) Witnesses, participants, and other attendees, who are not parties to the case, are not permitted to audio record the proceedings of a formal hearing.

HA 4.12(2) (2) A party shall provide verbal notice of audio recording to the presiding administrative law judge and all other parties in attendance at the proceedings of a formal hearing before audio recording of the hearing begins.

HA 4.12(3) (3) The presiding administrative law judge shall determine if a party’s audio recording disrupts or obstructs the hearing.

HA 4.12(4) (4) The presiding administrative law judge may set conditions for audio recording of a formal hearing to avoid disruption or obstruction of the hearing.

HA 4.12(5) (5) A party’s recording of the proceedings does not constitute the official record of the proceedings.

HA 4.12 History History: CR 15-031: cr. Register October 2015 No. 718, eff. 11-1-15; renumbered from DWD 80.13 under s. 13.92 (4) (b) 1., Register May 2018 No. 749.

HA 4.13 HA 4.13 Transcripts. Transcripts of testimony taken or proceedings had before the division shall be furnished to the applicant or respondent or their attorneys in accordance with all of the following provisions:

HA 4.13(1) (1) After the commencement of an action to review an order of the labor and industry review commission in circuit court, a copy of the hearing record will be furnished to the plaintiff or other parties upon payment to the division of the reporter’s fees set forth in s. 757.57 (5), Stats., and not as set forth in s. 757.57 (2), Stats.

HA 4.13(2) (2) Transcripts of the hearing may not be provided until after commencement of an action in circuit court.

HA 4.13(3) (3) Upon proper showing of financial inability to pay for copies of such testimony or proceedings, the division may furnish copies of the same on such terms as may be agreed upon.

HA 4.13 History History: 1-2-56; am. (1) (a), (b), Register, October, 1965, No. 118, eff. 11-1-65; am. Register, November, 1970, No. 179, eff. 12-1-70; am. (1) (a), Register, April, 1971, No. 184, eff. 5-1-71; r. and recr. (1) (a) and (b), Register, September, 1982, No. 321, eff. 10-1-82; (title), (intro.), (1) to (3) renumbered from DWD 80.14 (title), (1) (intro.), (a) to (c) under s. 13.92 (4) (b) 1., correction in (intro.), (1), (3) under s. 13.92 (4) (b) 6., Stats., Register May 2018 No. 749; CR 18-059: am. (intro.), (1), (3) Register July 2019 No. 763, eff. 8-1-19.

HA 4.14 HA 4.14 Reports by practitioners and expert witnesses.

HA 4.14(1) (1) Upon the request of the division, any party to a claim pending before the division under ch. 102, Stats., shall furnish to the division and to all parties copies of all reports by practitioners and expert witnesses in their possession or procurable by them.

HA 4.14(2) (2) In cases involving nonscheduled injuries under s. 102.44 (2) or (3), Stats., any party to a claim pending before the division under ch. 102, Stats., shall, upon the request of the division, furnish to the division and to all parties any reports in the party’s possession or reasonably available to that party relating to the loss of earning capacity as set forth in s. DWD 80.34.

HA 4.14(3) (3) Any party who does not comply with the request of the division under sub. (1) or (2) shall be barred from presenting the reports or the testimony contained in the reports at the hearing.

HA 4.14(4) (4) No testimony or reports from expert witnesses on the issue of loss of earning capacity may be received unless the party offering the evidence has notified the division and the other parties of interest of the party’s intent to provide the testimony or reports and the names of expert witnesses involved as required under s. 102.17 (7), Stats.

HA 4.14 History History: CR 18-059: cr. Register July 2019 No. 763, eff. 8-1-19.

HA 4.15 HA 4.15 Use of reports as evidence.

HA 4.15(1) (1) In this section, “report” means a report by a practitioner or a report by an expert witness on the issue of loss of earning capacity, as described in s. HA 4.14.

HA 4.15(2) (2) Matters stated in a report that would not be competent or material evidence if given as oral testimony are not competent or material as prima facie evidence if objection is made, except as corroborated by competent and material oral testimony.

HA 4.15 Note Note: See s. 102.17 (1) (d), Stats.

HA 4.15(3) (3) Use of reports shall be permitted in any case in which claim for compensation is made, provided the reporting practitioner or other expert is available for cross examination.

HA 4.15(4) (4) Reports shall be submitted to the division on a prescribed form and shall be certified. An applicant shall be informed of the provisions of s. 102.17 (1) (d), Stats., and ss. DWD 80.21 and HA 4.14, and also that a form for reporting will be supplied to the applicant upon request.

HA 4.15(5) (5) The division may require additional or supplementary reports. Upon failure of the applicant to submit such reports within the time specified prior to hearing, all reports previously filed may, in the discretion of the division, be excluded as evidence.

HA 4.15(6) (6) Reports shall be filed with the application or as soon thereafter as possible. Reports not filed with the division 15 days prior to the date of hearing shall not be acceptable as evidence except upon good cause for failure so to file, established to the satisfaction of the division.