The scope statement for this rule, SS 052-18, was approved by the Governor on May 14, 2018, published in Register No. 749A3 on May 21, 2018, and approved by the Administrator of the Division of Hearings and Appeals in the Department of Administration on June 5, 2018. Analysis by the Department of Administration, Division of Hearings and Appeals
Statutes interpreted: None
Explanation of agency authority:
“(2) In this chapter: … (ar) ‘Division’ means the division of hearings and appeals [DHA] in the department of administration.”
“(1) Subject to this chapter, the division [DHA] may adopt its own rules of procedure and may change the same from time to time.
102.15(2) “(2) The division [DHA] may provide by rule the conditions under which transcripts of testimony and proceedings shall be furnished.” “The division [DHA] may, by rule, establish the qualifications of and the form used for certified reports submitted by experts who provide information concerning loss of earning capacity under s. 102.44 (2) and (3)…” “Any division … attached under this section to a department or independent agency or a specified division thereof shall be a distinct unit of that department, independent agency or specified division. Any division, … so attached shall exercise its powers, duties and functions prescribed by law, including rule making, licensing and regulation, and operational planning within the area of program responsibility of the division …”
“15.103(1)(1) Division of hearings and appeals. There is created a division of hearings and appeals which is attached to the department of administration under s. 15.03. …” “(2) Rule-making authority is expressly conferred on an agency as follows: … 227.11(2)(a) (b) Each agency may prescribe forms and procedures in connection with any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute, but this paragraph does not authorize the imposition of a substantive requirement in connection with a form or procedure.” Related statute or rule: Wis. Stat. § 102.15(1) and (2); Wis. Admin. Code, ss. DWD ch. 80. Plain language analysis: 2015 Wisconsin Act 55 (Act 55) transferred the adjudication of disputed worker’s compensation claims and related claims from the Department of Workforce Development (DWD) to the Division of Hearings and Appeals (DHA) in the Department of Administration and authorized DHA to adopt its own rules of procedure. Act 55 also provided for the direct transfer to DHA of rules in Wis. Admin. Code, ch. DWD 80 that were primarily related to adjudicatory functions, and those rules are currently in Wis. Admin. Code, ch. HA 4. This proposed rule order brings HA 4 in compliance with the requirments of Act 55. It makes technical changes necessitated by the transfer of rules under Act 55, including adding non-substantive provisions regarding the statutory authority for the transferred rules, the manner which forms, papers and materials may be served on DHA, and the use of stipulations in adjudicatory proceedings before DHA. It states that substantive rules promulgated by DWD apply in the adjudication of disputes before DHA and incorporates by reference DWD rules governing review of compromises and the inspection and copying of records. It also adds provisions codifying DHA’s current procedures for managing its caseload in the adjudication of disputed worker’s compensation and related claims, including its current practice for mediation in worker’s compensation claims after a hearing application has been filed. It also makes a number of stylistic changes to the transferred rules.
Section 1 creates provisions setting out the specific proceedings in which ch. HA 4 applies (HA § 4.01) and general definitions (HA § 4.02). Section 1 also creates a provision (§ HA 4.03) stating that:
the provisions of substantive rules promulgated by DWD in ch. DWD 80, apply in the adjudication of disputed worker’s compensation and related claims by DHA.
the DWD rule governing the inspection and copying of records applies to records in the custody of DHA.
the DWD rule governing action on compromises applies to compromises acted upon by DHA. Sections 2, 6, 7, 9, 10, 12, 13, 14, 15, and 16 make stylistic or technical changes in existing rules already transferred to DHA under Act 55. (§§ HA 4.04 (1), (2), (3)(d) and (e), HA 4.07,
HA 4.08 (2), (3), and (4), HA 4.11 (1), (2) (intro.), (a), and (b), HA 4.13 (intro.), (1), and (3),
HA 4.15, HA 4.16, and HA 4.17.) Section 3 creates provisions setting out DHA’s current procedures for managing its caseload in the adjudication of disputed worker’s compensation and related claims (§ HA 4.04 (3)(a), (b) and (c), and (4).) Sections 3, 4, 5, 8, 11 reproduce provisions within ch. HA 4 that parallel current rules retained in ch. DWD 80, and that are necessary due to the transfer of adjudication of disputed worker’s compensation and related claims to DHA by Act 55. These include:
§ HA 4.05 allowing for appearances before DHA by an attorney or agent, tracking the last sentence of § DWD 80.06.
§ HA 4.06, dealing with the service and filing of material in matters pending before DHA, tracking § DWD 80.07.
§ HA 4.09, dealing with the use of stipulations in matter pending before DHA, tracking DWD § 80.10.
§ HA 4.14 regarding the submission of reports of certain experts for use in hearings before DHA, tracking § DWD 80.21.Section 17 codifies DHA’s existing practice for mediation in worker’s compensation claims after a hearing application has been filed. (§ HA 4.18.) Summary of, and comparison with, existing or proposed federal regulation: There is no existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.
Comparison with rules in adjacent states:
Ill. Admin. Code tit. 50, part 9030 (Hearings before workers compensation arbitrators)
Iowa Admin. Code Rule 876-4 (Workers compensation contested case procedure)
Iowa Admin. Code Rule 876-10.1 (Dispute resolution procedure after a contested case proceeding is filed in a workers compensation case)
Mich. Admin. Code Rule 408.34 to 408.40 (Workers compensation agency hearings
Mich. Admin. Code Rule 408.40b (Appearances at mediation conferences before workers compensation agency )
Minn. Admin Code Rule 1420 (Workers’ compensation litigation procedures)
The proposed rules are similar to procedural rules governing worker’s compensation procedures in other states.
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
