Chapter HA 4

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.

HA 4.15(7) (7) Simultaneously with the filing of a report with the division, a party shall serve copies upon all other parties. Service upon the designated representative of a party shall be deemed service upon the party. Service upon the insurance carrier for an employer shall be deemed service upon the employer. However, if a party does not have a representative, the division may elect to make service upon other parties.

HA 4.15 History History: 1-2-56; am. (intro.), (4), (7) Register, October, 1965, No. 118, eff. 11-1-65; am. Register, April, 1975, No. 232, eff. 5-1-75; am. (3) and r. and recr. (6), Register, September, 1982, No. 321, eff. 10-1-82; am. (intro.), Register, September, 1986, No. 369, eff. 10-1-86; reprinted to restore dropped copy in (1), Register September 2005 No. 597; renumbered from DWD 80.22 under s. 13.92 (4) (b) 1., correction in (3) to (6) under s. 13.92 (4) (b) 6., Stats., Register May 2018 No. 749; CR 18-059: renum. (1) to (6) to (2) to (7) and am., cr. (1); Register July 2019 No. 763, eff. 8-1-19.

HA 4.16 HA 4.16 Procedure and claims under ch. 40, Stats. The division shall observe the same rules and procedures and may use the same forms in processing and determining claims made under s. 40.65, Stats., as are used under ch. 102, Stats.

HA 4.16 History History: Cr. Register, October, 1965, No. 118, eff. 11-1-65; am. Register, April, 1975, No. 232, eff. 5-1-75; am. Register, September, 1986, No. 369, eff. 10-1-86; renumbered from DWD 80.31 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 4.17 HA 4.17 Witness fees and travel reimbursement. The fees and travel reimbursement of witnesses and interpreters for attending a hearing before an administrative law judge shall be the statewide rate currently paid under s. 814.67 (1) (b), Stats., notwithstanding any local county variations.

HA 4.17 History History: Cr. Register, September, 1982, No. 321, eff. 10-1-82; correction made under s. 13.93 (2m) (b) 7., Stats., Register November 2002 No. 563; renumbered from DWD 80.44 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 4.18 HA 4.18 Mediation conferences.

HA 4.18(1) (1) Definitions. In this section:

HA 4.18(1)(a) (a) “Administrative law judge mediator” means an administrative law judge whose duties include conducting mediation conferences.

HA 4.18(1)(c) (c) “Mediation conference” means a voluntary, informal, off-record conference among an administrative law judge mediator and the parties, their representatives, or both, to explore settlement options in an effort to achieve a negotiated, conciliatory resolution of disputed claims without a formal hearing on the merits of a case.

HA 4.18(1)(d) (d) “Request to schedule a mediation conference form” means a form prescribed by the division that sets out the claims at issue in a requested mediation conference, identifies the conceded and disputed benefits, and describes the parties’ respective positions.

HA 4.18(2) (2) Mediation process.

HA 4.18(2)(a) (a)

HA 4.18(2)(a)1. 1. The purpose of a mediation conference is to resolve all disputed matters or issues in cases in which the issues are sufficiently well-developed.

HA 4.18(2)(a)2. 2. A mediation conference should not be used to address minor disputes or effect piecemeal resolution of disputed claims.

HA 4.18(2)(b) (b) A mediation conference shall be scheduled only after all of the following have occurred:

HA 4.18(2)(b)1. 1. An application for hearing has been served.

HA 4.18(2)(b)2. 2. The applicant has submitted a request to schedule a mediation conference form.

HA 4.18(2)(b)3. 3. The respondent has confirmed in writing that it concurs with the request for a settlement mediation.

HA 4.18(2)(b)4. 4. The respondent has confirmed that the insurance company has, or will have by the date of the scheduled mediation conference, authority to resolve the claim based on a good faith evaluation of the known facts and evidence of record.

HA 4.18(2)(c) (c) A party may request a particular administrative law judge mediator to serve in a particular case. The division shall assign an administrative law judge mediator to conduct mediation conferences based on division needs and resources after considering a party’s request.

HA 4.18(2)(d) (d) In conducting a mediation conference, an administrative law judge mediator may do all of the following:

HA 4.18(2)(d)1. 1. Engage in ex parte communication with the parties or their representatives.

HA 4.18(2)(d)2. 2. Adopt his or her own procedures regarding the submission of documents and evidence to be used in preparing for a mediation conference.

HA 4.18(2)(e) (e) A settlement achieved through a mediation conference must be approved by both the administrative law judge mediator and the chief administrative law judge or his or her designee. A settlement agreement achieved through mediation outside the office of worker’s compensation hearings’ mediation process must be reviewed and approved by an administrative law judge as provided in s. HA 4.03 (2).

HA 4.18(3) (3) Confidentiality.

HA 4.18(3)(a) (a)

HA 4.18(3)(a)1. 1. Subject to subd. 2. and par. (d), all communications or statements, oral or written, that take place within the context of a mediation conference and are not otherwise discoverable, are confidential and not subject to disclosure. Such communications or statements shall not be disclosed by any administrative law judge mediator, party, attorney attendee, or division employee, and may not be used as evidence for any purpose, including impeachment, at hearing or any other legal or administrative proceeding.

HA 4.18(3)(a)2. 2. This paragraph does not apply to an executed compromise agreement derived from a mediation conference or any order approving any such mediated settlement.

HA 4.18(3)(b) (b) Subject to par. (d), neither the administrative law judge mediator nor any third-party observer present at a mediation conference with the permission of the parties may be subpoenaed or otherwise required to testify in any proceeding concerning a mediation or settlement negotiations. Absent waiver of confidentiality by the offended party, the notes, records, and recollections of the administrative law judge mediator, as well as well as any evidentiary compilation of records or documents utilized by the administrative law judge mediator in preparing for the mediation conference, shall be kept separate and apart from the division litigation file, are not subject to discovery, and shall not be used as evidence in any proceedings. If so called or subpoenaed, the person or entity called or subpoenaed may refuse to testify or produce the requested documents. Should any party attempt to compel such testimony or production of documents, such party shall be liable for, and shall indemnify the division and the administrative law judge mediator against, any liabilities, costs, or expenses, including reasonable attorney fees, that may be incurred in resisting such compulsion.

HA 4.18(3)(c) (c) Upon request, the presiding administrative law judge mediator may issue a protective order to keep private spoken or written information that might otherwise become part of the official record in a contested case. Such an order does not preclude release or sharing of information already known or discovered outside the mediation process.

HA 4.18(3)(d) (d) This subsection does not apply to any of the following:

HA 4.18(3)(d)1. 1. Threats of violence to the administrative law judge mediator or others.

HA 4.18(3)(d)2. 2. Security personnel or law enforcement officials.

HA 4.18(3)(d)3. 3. Party or attorney misconduct.

HA 4.18(3)(d)4. 4. Legal or disciplinary complaints brought against an administrative law judge mediator or attorney arising out of and during the occurrence of an event that transpires in the course of a mediation.

HA 4.18 History History: CR 18-059: cr. Register July 2019 No. 763, eff. 8-1-19; correction in (1) (b) to (d) made under s. 13.92 (4) (b) 1., Stats., Register July 2019 No. 763; corrections in (2) (b) 4. and (3) (b) made under s. 35.17, Stats., Register July 2019 No. 763.