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.
(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 of hearings and appeals.
Section 8. HA 4.09 is created to read:
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.
Section 9. HA 4.11 (1) and (2) (intro.), (a), and (b) are amended to read:
HA 4.11 (1) (a) The rules of practice before the division of hearings and appeals shall be such as to secure the facts in as direct and simple a manner as possible.
(b) The examiner administrative law judge may limit testimony to only those matters which are disputed.
(c) The examiner 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 examiner provided such testimony has probative value administrative law judge.
(2) The division of hearings and appeals 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 of hearings and appeals. From this list, a hearing site shall be selected at the discretion of the division of hearings and appeals. The division of hearings and appeals, in determining the site of the hearing, shall consider all of the following:
(a) The applicant’s location choice of the applicant;.
(b) The location of the office of the treating practitioner or practitioner appointed by the department of workforce development or division of hearings and appeals under the provisions of s. 102.13 (3) or 102.17, Stats.; and. Section 10. HA 4.13 (intro.), (1), and (3) are amended to read:
HA 4.13 Transcripts. Transcripts of testimony taken or proceedings had before the division of hearings and appeals will shall be furnished to the applicant or respondent or their attorneys in accordance with all of the following provisions:
(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 hearings and appeals of the reporter’s fees set forth in s. 757.57 (5), Stats., and not as set forth in s. 757.57 (2), Stats. (3) Upon proper showing of financial inability to pay for copies of such testimony or proceedings, the division of hearings and appeals in its discretion will may furnish copies of the same on such terms as may be agreed upon.
Section 11. HA 4.14 is created to read:
HA 4.14 Reports by practitioners and expert witnesses. (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. (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. (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.
(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. Section 12. HA 4.15 (title) is amended to read:
HA 4.15 Use of physicians’ reports as evidence.
Section 13. HA 4.15 (1) to (6) are renumbered HA 4.15 (2) to (7) and amended to read:
# HA 4.15 (2) Matters stated in such a report which that would not be competent or material evidence if given as oral testimony shall are not be competent or material as prima facie evidence if objection is made, except as corroborated by competent and material oral testimony.
(3) Use of reports shall be permitted in any case in which claim for compensation is made, provided the reporting doctor practitioner or other expert is available for cross examination.
