Summary of factual data and analytical methodologies: The proposed rule order primarily makes stylistic and technical changes to provisions transferred to current ch. HA 4 by Act 55 and codifies DHA’s current practice for managing its worker’s compensation caseload, including its existing procedure for mediation in worker’s compensation claims after a hearing application has been filed. It also incorporates existing procedures from ch. DWD 80 into ch. HA 4 in light of the transfer of worker’s compensation adjudicatory functions from DWD to DHA under Act 55. No factual data or analytical methodologies were used in the preparation of the proposed rules. Analysis and supporting documents used to determine effect on small business: The proposed rule order primarily makes stylistic and technical changes to provisions transferred to current ch. HA 4 by Act 55 and codifies DHA’s current practice for managing its worker’s compensation caseload, including its existing procedure for mediation in worker’s compensation claims after a hearing application has been filed. It also incorporates existing procedures from ch. DWD 80 into ch. HA 4 in light of the transfer of worker’s compensation adjudicatory functions from DWD to DHA under Act 55. It makes no policy or other changes having an effect on small business. Anticipated costs incurred by private sector: This proposed rule does not have a fiscal effect on the private sector.
Fiscal Estimate and Economic Impact Analysis: The Fiscal Estimate and Economic Impact Analysis document is attached.
Effect on small business: This proposed rule does not affect small business.
Agency contact person: Please contact Jeffrey Shampo at (608) 266-3048 or jeffrey.shampo@wisconsin.gov, if you have any questions regarding this proposed rule, including substantive questions on the rules or the internal processing of the rules. Public Hearing: A public hearing is scheduled on this proposed rule order for:
Wednesday, September 5, 2018
9:00 a.m. to 10:30 a.m.
Room S148
Hill Farms State Office Building
4822 Madison Yards Way
Madison, WI 53705
Office of Worker’s Compensation Hearings
Division of Hearings and Appeals
4822 Madison Yards Way Fifth FloorDown Madison, WI 53705
Text of rule
Section 1. HA 4.01, 4.02, 4.03, and 4.03 (Note) are created to read:
(2) Scope and application. This chapter applies to the procedure of the division with respect to worker’s compensation hearings under ch. 102, Stats., and to hearings under ss. 40.65 (2), 59.88 (3), 62.624 (2), 106.25, 303.07 (7), and 303.21, Stats., and s. 66.191, 1981 Stats. HA 2.02HA 4.02 Definitions. In this chapter: (1) “Administrative law judge” means a hearing examiner employed by the office of worker’s compensation hearings to conduct hearings under s. 102.17 (2) (b) and (c), Stats. (2) “Applicant” means a party filing an application for relief.
(3) “Department” means the department of workforce development.
(5) “Office of worker’s compensation hearings” is one of several subunits authorized by the division administrator and is the subunit that administers adjudicatory functions related to worker’s compensation claims.
(6) “Respondent” means a party adverse to an application for relief.
HA 4.03 Application of department rules. (1) Section DWD 80.025 applies to the procedure for inspection and copying of worker’s compensation records in the custody of the division. (2)
(a) Except as provided in par. (b), the provisions of s. DWD 80.03 apply with respect to the division when the division acts on a compromise under s. l02.16 (1) (c), Stats., to the same extent those provisions apply to the department when acting on a compromise under s. 102.16 (1) (b), Stats.(b) All written compromise agreements submitted to the division shall contain the following statement:
The employee has the right to petition the department of administration, division of hearings and appeals to set aside or modify this compromise agreement within one year of its approval by the division. The division may set aside or modify the compromise agreement. The right to request the division to set aside or modify the compromise agreement does not guarantee that the compromise will in fact be reopened.
(3)
Substantive rules of the department that implement, interpret, or make specific legislation enforced or administered by the department within the meaning of s. 227.01 (13), Stats., have the force and effect of law in proceedings before the division under this chapter. 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 80.48 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). Section 2. HA 4.04 (1) and (2) are amended to read:
HA 4.04 (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 of workforce development for relief and the division of hearings and appeals shall make such order or award as shall be lawful and just under the circumstances. (2) In all such cases under sub. (1), the party complaining applicant shall file his or her application with the department of workforce development, along with sufficient copies of the application for service on the adverse parties respondents. The department of workforce development shall thereupon serve the adverse parties respondents with a copy of the application and the adverse parties respondents shall file an answer to the application with the division of hearings and appeals within 20 days after the service and likewise serve a copy of the answer on the party making application applicant. The division of hearings and appeals shall thereupon notify the parties of the time and place of hearing, at least 10 days prior to the hearing. If no answer is mailed by the respondent within 20 days of mailing by the department of workforce development service of the application by the department, the division of hearings and appeals may issue an order by default, without hearing, in accordance with the application, as provided by s. 102.18 (1) (a), Stats. Section 3. HA 4.04 (3), (4), and (5) are created to read:
(3) After an application for hearing is served, the division shall manage its caseload by appropriate action including any of the following:
(a) Determining whether any answer received is complete, identifies the correct date of injury, and identifies the correct parties for that date of injury.
(b) Filing documents or other material received or issued in connection with the claim.
(c) Controlling its calendar and scheduling matters for hearing.
(d) Notifying the parties of the time and place of hearing, at least 10 days prior to the hearing.
(e) Conducting hearings and making findings, orders, and awards that are lawful and just under the circumstances.
(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:
(a) In cases of vision loss and hearing loss, obtaining a computation of permanent disability indemnity.
(b) Impleading other employers or insurance carriers.
(c) Securing the participation of the uninsured employers fund or the work injury supplemental benefit fund.
(d) Dismissing parties improperly served with the application.
(e) Dismissing the application if defective or upon request of a party.
(f) Scheduling and conducting prehearing conferences.
(g) Adjourning or postponing prehearing conferences and hearings scheduled under par. (f) and sub. (3) (c).
(h) Within 21 days of issuance, setting aside, reversing, or modifying findings, orders or awards as provided in s. 102.18 (3), Stats. (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). Section 4. HA 4.05 is created to read:
HA 4.05 Appearance by attorney or agent. Any party may appear before the division in person or by an attorney or agent.
Section 5. HA 4.06 is created to read:
HA 4.06 Service and filing. (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.
(2) Filing date. Regardless of how served, materials submitted to the division are considered filed on the date they are received by the division.
Section 6. HA 4.07 is amended to read:
HA 4.07 Amendments. Amendment may be made to the application or answer by letter mailed to the division of hearings and appeals 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.
Section 7. HA 4.08 (2), (3), and (4) are amended to read:
HA 4.08 (2) Requests for postponements or continuances shall be considered by the division of hearings and appeals only if such requests are received within a reasonable time before the date of the hearing.
(3) The division of hearings and appeals 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.
