Chapter ETF 11

ETF 11.05 ETF 11.05 Discovery. There is no right to take and preserve evidence prior to the hearing, except as provided in this section.

ETF 11.05(1) (1) No party to an appeal shall have access to individual personal information in the records of the department except as expressly authorized under s. 40.07, Stats., and this section.

ETF 11.05(2) (2) In an appeal of the denial of an application for a disability annuity or duty disability benefits under s. 40.63 (5) or (9) (d) or 40.65 (2) (b) 3., Stats., the department may provide the hearing examiner, employer, participant and any other party to the appeal with copies of any physician certifications under s. 40.63 (1) (d) or 40.65 (2) (b) 2., Stats., received in connection with the application.

ETF 11.05(3) (3) The department may disclose to the board’s hearing examiner individual personal information it deems both relevant to the appeal and required to be disclosed for the proper administration of a benefit program under ch. 40, Stats. Any information disclosed by the department under this subsection shall also be provided to the parties to the appeal. A person receiving information under this subsection shall maintain the confidentiality of the information.

ETF 11.05(4) (4) A party to the appeal may request that the hearing examiner review individual personal information in the records of the department in camera. If the hearing examiner determines that the information is relevant to the appeal and disclosure is required to assure proper administration of a benefit program under ch. 40, Stats., the examiner may order the department to disclose the information as provided in sub. (3).

ETF 11.05(5) (5) Testimony may be taken and preserved of a witness:

ETF 11.05(5)(a) (a) Who is beyond the reach of the subpoena of the agency, any other party, or the hearing examiner;

ETF 11.05(5)(b) (b) Who is about to go out of the state, not intending to return in time for the hearing;

ETF 11.05(5)(c) (c) Who is so sick, infirm or aged as to make it probable that the witness will not be able to attend the hearing; or,

ETF 11.05(5)(d) (d) Who is a member of the legislature, if any committee of the legislature or the house of which the witness is a member is in session, provided the witness waives his or her privilege.

ETF 11.05 Note Note: See s. 227.45 (7), Stats.

ETF 11.05(6) (6) A party may make a request for admissions as provided in s. 804.11, Stats.

ETF 11.05(7) (7) By advance written agreement between all parties, the oral or written deposition of a witness, as described by ss. 804.05 and 804.06, Stats., may be taken and used at the hearing in its entirety, so far as it is admissible under this chapter, as if the witness were then present and testifying.

ETF 11.05 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (2), (5) (a) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (4), (7) Register July 2012 No. 679, eff. 8-1-12.

ETF 11.06 ETF 11.06 Evidence at hearing.

ETF 11.06(1) (1) Privileges; rules of evidence. Rules of privilege recognized by law shall be given effect. However, common law or statutory rules of evidence do not apply except as provided in s. ETF 11.12 (2) (b) concerning hearsay. The hearing examiner shall admit all testimony having a reasonable probative value. The hearing examiner shall exclude from the record irrelevant, immaterial, or unduly repetitious testimony.

ETF 11.06(2) (2) Objections. Failure of a party to object on the record to admission of any evidence shall be deemed a waiver of that objection.

ETF 11.06(4) (4) Presumptions. In addition to any other presumptions under applicable law:

ETF 11.06(4)(a) (a) A signature purporting to be that of a participant, annuitant, named survivor, or beneficiary on a document previously accepted and filed by the department is presumed to be that of the participant, annuitant, named survivor, or beneficiary absent clear and convincing proof to the contrary.

ETF 11.06(4)(b) (b) A participant, annuitant, named survivor, beneficiary, insured or deferrer is presumed mentally competent at the time of making any application, election, designation or taking any other action affecting rights or benefits under ch. 40, Stats., accepted and acted upon by the department, whether affecting only the person or others. This presumption may be rebutted only by proof in the form of a certified copy of the judgment showing that, at the time of the event at issue, the person was adjudged incompetent with respect to management of his or her property.

ETF 11.06(4)(c) (c) For the purpose of determining timeliness of an appeal request, notice of the department determination is conclusively presumed to have been given to the addressee and all listed recipients of copies on the date the determination was sent by mail or e-mail. Absent clear and convincing proof to the contrary, the day the determination is dated is presumed to be the date the determination was sent by mail or e-mail. Absent clear and convincing proof to the contrary, a request for an appeal is presumed received on the day stated by the date stamp affixed to incoming department correspondence. If the request for an appeal is made by e-mail, the request is presumed to be received by the department on the date the e-mail enters the information processing system designated or used by the department for the purpose of receiving electronic mail provided the following are true:

ETF 11.06(4)(c)1. 1. The e-mail transmission is in a form capable of being processed by the department’s information processing system.

ETF 11.06(4)(c)2. 2. The department is able to retrieve the e-mail from the information processing system.

ETF 11.06(5) (5) Official notice. The hearing examiner shall take notice of all rules published in the Wisconsin administrative code or register and the written opinions of the attorney general. The hearing examiner may take official notice of any generally recognized fact or established technical or scientific fact, provided the parties are notified of the facts to be noticed and given opportunity to contest their validity.

ETF 11.06(6) (6) Department records. No additional identification or evidence of authenticity, beyond a statement or certification from a custodian or deputy custodian, is required as a pre-requisite for admitting into evidence documents or photocopies of documents from the department record of a particular participating employer, participant or annuitant, including beneficiary claim documents. When a photocopy of a departmental record is offered under this subsection, any party shall be permitted, upon request, to compare the photocopy and the original.

ETF 11.06(7) (7) Close of hearing and evidence. Evidence in any appeal shall be closed when due opportunity to furnish relevant evidence, including proper examination of witnesses and rebuttal, has been afforded to all parties. If by stipulation of the parties or direction of the examiner, documentary evidence is introduced after close of testimony, the evidence is closed when the document is received or when the specified time for furnishing it has expired without it being submitted. The examiner may extend the original time limit for filing documentary evidence. Before the examiner makes a proposed or final decision, the examiner may reopen the hearing for the taking of further evidence.

ETF 11.06 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 07-066: am. (1), Register March 2008 No. 627, eff. 4-1-08; CR 11-040: am. (4) (c) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: r. (3), am. (4) (a), (b) Register May 2021 No. 785, eff. 6-1-21; correction in (4) (a) made under s. 35.17, Stats., Register May 2021 No. 785.

ETF 11.07 ETF 11.07 Informal disposition.

ETF 11.07(1) (1) Disposition of an appeal under this section requires no further action by the hearing examiner or board. After the parties have informed the hearing examiner in writing that the appeal has been disposed of informally pursuant to this section, the hearing examiner shall forward the record to the appeals coordinator.

ETF 11.07(2) (2) An appeal may be resolved informally by an agreement between all parties to dismiss the appeal with or without prejudice. The department shall then make an order dismissing the appeal as agreed, attach it to the agreement and file it with the record.

ETF 11.07(3) (3) If the appellant withdraws the appeal, in writing, the appeal shall be immediately dismissed by the department. This dismissal shall be with prejudice if more than 90 days have elapsed from notice of the determination appealed from, or if an applicable time limit or statute of limitations expired while the dismissed appeal was pending.

ETF 11.07 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-044: am. (1) Register July 2012 No. 679, eff. 8-1-12.

ETF 11.08 ETF 11.08 Final disposition by hearing examiner.

ETF 11.08(1) (1) The hearing examiner’s findings, conclusions and order dismissing an appeal as provided in this section shall be the final decision of the board.

ETF 11.08(2) (2) The hearing examiner shall prepare and issue a dismissal, in the form and manner required by this chapter for a final decision, under the following circumstances:

ETF 11.08(2)(a) (a) If the examiner determines that a party has defaulted, resolving the issues on appeal, or that the appellant has failed to appear or pursue the appeal.

ETF 11.08(2)(b) (b) If the examiner determines that the appeal is wholly or partially time-barred for one or more of the following reasons:

ETF 11.08(2)(b)1. 1. The appeal was not filed within 90 days after the department determination appealed from was sent by mail or e-mail to the person aggrieved by the determination. The entire appeal shall be dismissed.

ETF 11.08(2)(b)2. 2. The issue is the classification of an employee as a protective occupation participant or participating employee and with respect to service rendered more than 7 years prior to the date the appeal is received by the department. Any portion of the appeal not time-barred may proceed. In s. 40.06 (1) (e) 1., Stats., and this subdivision only, “appeal ... received by the department” means the request by the employee to review the employer’s determination, not the challenge to the department’s resulting determination.

ETF 11.08(2)(b)3. 3. The appeal concerns a request to correct an alleged error with respect to service credits or contribution, premium or benefit payments and the request was made more than 7 full calendar years after the date of the alleged error or beyond another applicable limitation specifically provided by statute. If the alleged error is the result of fraud the applicable limitation is instead 3 years from the date the aggrieved person discovered the facts constituting the fraud. Any portion of the appeal not time-barred may proceed.

ETF 11.08(2)(b)4. 4. The appeal involves a claim barred by s. 41.04 (2) (c), 1979 Stats., or an applicable statute of limitation, including but not limited to ss. 893.43 and 893.93 (1m) (a), Stats. Any portion of the appeal not time-barred may proceed.

ETF 11.08(2)(c) (c) The appeal is moot. When an appeal seeks correction of an administrative error, and the department has acknowledged and corrected the error, the appeal, or the appropriate portion of the appeal, is moot. Any portion of the appeal not moot may proceed.

ETF 11.08(2)(d) (d) The appellant does not have a substantial interest affected by the determination made by the department.

ETF 11.08(2)(e) (e) There is no material issue of fact or law and under the undisputed material facts and law, the appellant is ineligible for the claimed right or benefit or fails to meet all the qualifications for the claimed right or benefit established by statute, administrative rule and applicable contract.

ETF 11.08(2)(f) (f) No issue has been identified which can be resolved by the hearing examiner or board under this chapter or ch. 40, Stats.

ETF 11.08(2)(g) (g) There is no remaining issue to be decided from the issues that are set forth in the department determination letter.

ETF 11.08(3) (3) In addition to final decision-making authority granted by sub. (2), the hearing examiner shall also make the final decision of the board if the issues on appeal are limited to one or more of the following:

ETF 11.08(3)(a) (a) The numeric result of a mathematical calculation by the department, not involving any challenge to the application of law in choosing the appropriate values or formulas used to make the calculation.

ETF 11.08(3)(b) (b) The amount of a reduction in duty disability benefits under s. 40.65, Stats., resulting from receipt of other benefits.

ETF 11.08(3)(c) (c) The appeal of denial of a disability annuity under s. 40.63, Stats., where the sole reason for the department’s denial was that the employer did not certify as provided in s. 40.63 (1) (c), Stats., that the employee’s leave of absence or termination was the result of the disability.

ETF 11.08(4) (4) The hearing examiner shall issue the final decision of an appeal if the board has adopted a motion delegating final decision making authority to the hearing examiner for that specific appeal.

ETF 11.08(5) (5) The hearing examiner shall not exercise final decision-making authority under sub. (2) (c), (d) or (e), (3) or (4), if the decision necessarily involves the interpretation of a statute, rule or clause of a contract authorized under ch. 40, Stats., which the examiner finds to be ambiguous. The hearing examiner shall prepare a proposed decision and allow the board to make the necessary interpretation.

ETF 11.08(5m) (5m) The hearing examiner shall issue the final decision of an appeal if each of the parties informs the hearing examiner in writing that they agree to have the appeal decided pursuant to a motion for summary judgment. The motion must be filed with the hearing examiner and include the signatures of the parties.

ETF 11.08(6) (6) The hearing examiner may issue a proposed decision if the grant of final authority under this section is not, in the examiner’s opinion, clearly applicable to the particular appeal before the examiner.

ETF 11.08 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (2) (b) 1. Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (2) (b) 1., cr. (2) (f), (g), (5m) Register July 2012 No. 679, eff. 8-1-12; correction in (2) (b) 4. made under s. 13.92 (4) (b) 7., Stats., Register November 2018 No. 755; CR 19-126: am. (2) (b) 3. Register May 2021 No. 785, eff. 6-1-21.

ETF 11.09 ETF 11.09 Proposed decision.

ETF 11.09(1) (1) Contents. The proposed decision shall be in the same form and comply with the same standards as is required for a final decision. If the hearing examiner concludes that the decision may depend upon the interpretation of an ambiguous statute, the proposed decision shall include the hearing examiner’s basis for concluding that the statute is ambiguous as a matter of law and a recommended interpretation giving the same weight to the interpretations of the department, attorney general and administrative rules as is required for a final decision. If the proposed decision does not dispose of an issue raised by a party, the hearing examiner shall state in the proposed decision why ch. 40, Stats., or this chapter does not permit such a disposition.

ETF 11.09(2) (2) Copy to each party. A copy of the proposed decision shall be mailed to each party or the party’s attorney of record, with notice of the opportunity to file an objection and the manner and time limit for doing so.

ETF 11.09(3) (3) Objections. Any party may file a written objection to the proposed decision with the hearing examiner within 20 days of the date of the notice of the proposed decision. The party shall specify, in detail, the following:

ETF 11.09(3)(a) (a) Each provision of the proposed decision to which the party objects and the basis for each objection.

ETF 11.09(3)(b) (b) Each change the party requests the board to make in the proposed decision and the legal grounds for the change. If minor, the requested change may be described as a specific edit to the proposed decision. If extensive or major changes are requested, the party may attach a draft proposed decision, clearly marked as that party’s draft, to that party’s objections.

ETF 11.09(3)(c) (c) Any written objections to the proposed decision shall be included in the record of the appeal that is forwarded to the board.

ETF 11.09 Note Note: The written objection shall be filed with the division of hearings and appeals at the following address: 5005 University Avenue Suite 201, P.O. Box 7875, Madison, WI 53707-7875.

ETF 11.09(4) (4) Argument. A party filing objections to a proposed decision shall attach to the objections a written copy of any argument by the party in support of the objections. The board shall consider only written arguments, timely filed with the objection. The board shall not entertain oral argument.

ETF 11.09(5) (5) Agenda. Board staff shall place the appeal on the agenda for the regular board meeting next following the expiration of the time limit for filing objections. The appeals coordinator shall provide each board member with a copy of the record, including the proposed decision and the timely filed objections to the proposed decision. If board members would have less than 7 calendar days to review the record, proposed decision and timely objections, or the board’s agenda is already full, the appeal may instead be added to the agenda of the subsequent regular board meeting. Nothing in this subsection shall prevent the board from electing to hear an appeal case at a special meeting of the board.

ETF 11.09 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (3) (intro.) Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (1), (3) (intro.), cr. (3) (c) Register July 2012 No. 679, eff. 8-1-12; CR 19-126: am. (5) Register May 2021 No. 785, eff. 6-1-21.

ETF 11.10 ETF 11.10 Ex parte communications.

ETF 11.10(1) (1) The secretary and department employees may respond to any request made by the board or a board member for information required in the ordinary course of exercising the board’s regulatory and supervisory functions, even if the information requested may pertain to the subject matter of an appeal currently pending before the board or a hearing examiner.

ETF 11.10(2) (2) Except as provided in sub. (1), no person involved in an appeal proceeding or factually related matter as a party, an advocate for any party or as a witness may make any ex parte communication relative to the merits of the appeal to the hearing examiner or a board member prior to the final decision of the case.

ETF 11.10 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92.

ETF 11.105 ETF 11.105 Board member conflict of interest.

ETF 11.105(1) (1) No board member or employee of the department may participate in any appeal directly related to a specific benefit, credit, claim or application of the person.

ETF 11.105(2) (2) No board member may participate in deciding an appeal to which the board member is a party. No board member who is the director of the office of state employment relations, or the director’s designee, may participate in deciding an appeal to which the office of state employment relations is a party. No board member who is the chief executive, chairperson or member of the governing body of a participating employer may participate in deciding an appeal in which that particular participating employer is a party. A board member barred under this subsection from participating in the board’s decision of an appeal shall not make any ex parte communications to the board or another board member concerning that appeal and shall not participate in any way in the board’s quasi-judicial deliberations.

ETF 11.105 Note Note: See s. 40.01 (3), Stats.

ETF 11.105 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92.

ETF 11.11 ETF 11.11 Counsel for the board.

ETF 11.11(1) (1) In accordance with s. 40.03 (3), Stats., board staff shall arrange for legal counsel to advise the board during its consideration of a final decision.

ETF 11.11(2) (2) Any legal counsel asked to represent the board under sub. (1) shall fully disclose any real or apparent conflict of interest to the board chair and state whether counsel is able to render objective advice to the board. The board chair may waive the conflict on behalf of the board.

ETF 11.11(3) (3) Counsel appointed under sub. (1) shall provide legal representation to the board including all of the following:

ETF 11.11(3)(a) (a) Advising the board during its deliberations and making specific recommendations for action by the board.

ETF 11.11(3)(b) (b) Drafting findings of fact and conclusions of law.

ETF 11.11 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 09-047: am. (1) and (2), r. and recr. (3) Register May 2010 No. 653, eff. 6-1-10.

ETF 11.12 ETF 11.12 Final decision.

ETF 11.12(1) (1) Form. Final decisions, and proposed decisions to be considered by the board, shall be in writing and include:

ETF 11.12(1)(a) (a) Findings of fact, consisting of a concise and separate statement of the ultimate conclusion upon each material issue of fact, without recital of evidence. If the findings of fact do not include an ultimate conclusion on an issue raised by a party, a statement shall be made indicating why ch. 40, Stats., or this chapter do not authorize the hearing examiner to make such a ruling.

ETF 11.12(1)(b) (b) Conclusions of law based on the factual findings.

ETF 11.12(1)(c) (c) A list of names and addresses of all persons who are considered parties for purposes of judicial review.

ETF 11.12(1)(d) (d) An order stating either that the department determination is affirmed or, where the department determination is not affirmed, remanding the matter to the department with instructions to take necessary action on the matter, consistent with the final decision. In the following cases, the decision shall include the specified additional orders and findings:

ETF 11.12(1)(d)1. 1. ‘Disability; employer certification.’ Where the appeal is of a determination denying a disability annuity under s. 40.63, Stats., and the sole basis of the denial was the absence of an employer certification that the employee’s leave of absence or termination is the result of the disability, the decision shall include a finding whether the employer’s negative certification or failure to certify was reasonable and correct. If the employer’s action was unreasonable or incorrect, the decision shall include an order to the employer to make the certification and an order to the department to process the disability application when the certification is received.