Chapter HA 4

Ch. HA 4 Note Note: Chapter HA 4 (title) was created and ss. HA 4.04, 4.07, 4.08, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, and 4.17 were renumbered from ss. DWD 80.05, 80.08, 80.09, 80.11, 80.12, 80.13, 80.14, 80.22, 80.31, and 80.44 by the legislative reference bureau under s. 13.92 (4) (b) 1. and 2. and pursuant to 2015 Wisconsin Act 55, section 9151 (2) (g) in Register May 2018 No. 749. Section HA 4.05 (2) was renumbered from s. DWD 80.20 by the legislative reference bureau under s. 13.92 (4) (b) 1. and pursuant to 2021 Wisconsin Act 232, section 49 (1), in Register May 2022 No. 797.

HA 4.01 HA 4.01 Application of rules.

HA 4.01(1) (1) Authority. This chapter is promulgated under the authority of ss. 15.03, 102.15, 102.17 (1) (d) 3., and 227.11 (2) (b), Stats.

HA 4.01(2) (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 4.01 History History: CR 18-059: cr. Register July 2019 No. 763, eff. 8-1-19.

HA 4.02 HA 4.02 Definitions. In this chapter:

HA 4.02(1) (1) “Administrative law judge” means a hearing examiner employed by the office of worker’s compensation hearings to conduct hearings under s. 102.18 (2) (b) and (c), Stats.

HA 4.02(2) (2) “Applicant” means a party filing an application for relief.

HA 4.02(3) (3) “Department” means the department of workforce development.

HA 4.02(4) (4) “Division” means the division of hearings and appeals.

HA 4.02(5) (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.

HA 4.02(6) (6) “Respondent” means a party adverse to an application for relief.

HA 4.02 History History: CR 18-059: cr. Register July 2019 No. 763, eff. 8-1-19; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register July 2019 No. 763.

HA 4.03 HA 4.03 Application of department rules.

HA 4.03(1) (1) Section DWD 80.025 applies to the procedure for inspection and copying of worker’s compensation records in the custody of the division.

HA 4.03(2) (2) 

HA 4.03(2)(a) (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.

HA 4.03(2)(b) (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.

HA 4.03(3) (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.

HA 4.03 Note 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 80.43 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).

HA 4.03 History History: CR 18-059: cr. Register July 2019 No. 763, eff. 8-1-19.

HA 4.04 HA 4.04 Procedure on claim.

HA 4.04(1) (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 for relief.

HA 4.04(2) (2) In all such cases under sub. (1), the applicant shall file his or her application with the department, along with sufficient copies of the application for service on the respondents. The department shall thereupon serve the respondents with a copy of the application and the respondents shall file an answer to the application with the division within 20 days after the service and likewise serve a copy of the answer on the applicant. If no answer is mailed by the respondent within 20 days of service of the application by the department, the division may issue an order by default, without hearing, in accordance with the application, as provided by s. 102.18 (1) (a), Stats.

HA 4.04 Note Note: See s. 102.17, Stats.

HA 4.04(3) (3) After an application for hearing is served, the division shall manage its caseload by appropriate action including any of the following:

HA 4.04(3)(a) (a) Determining whether any answer received is complete, identifies the correct date of injury, and identifies the correct parties for that date of injury.

HA 4.04(3)(b) (b) Filing documents or other material received or issued in connection with the claim.

HA 4.04(3)(c) (c) Controlling its calendar and scheduling matters for hearing.

HA 4.04(3)(d) (d) Notifying the parties of the time and place of hearing, at least 10 days prior to the hearing.

HA 4.04(3)(e) (e) Conducting hearings and making findings, orders, and awards that are lawful and just under the circumstances.

HA 4.04(4) (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:

HA 4.04(4)(a) (a) In cases of vision loss and hearing loss, obtaining a computation of permanent disability indemnity.

HA 4.04(4)(b) (b) Impleading other employers or insurance carriers.

HA 4.04(4)(c) (c) Securing the participation of the uninsured employers fund or the work injury supplemental benefit fund.

HA 4.04(4)(d) (d) Dismissing parties improperly served with the application.

HA 4.04(4)(e) (e) Dismissing the application if defective or upon request of a party.

HA 4.04(4)(f) (f) Scheduling and conducting prehearing conferences.

HA 4.04(4)(g) (g) Adjourning or postponing prehearing conferences and hearings scheduled under par. (f) and sub. (3) (c).

HA 4.04(4)(h) (h) Within 21 days of issuance, setting aside, reversing, or modifying findings, orders or awards as provided in s. 102.18 (3), Stats.

HA 4.04(5) (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).

HA 4.04 History History: 1-2-56; am., Register, April, 1975, No. 232, eff. 5-1-75; am. Register, September, 1982, No. 321, eff. 10-1-82; am. (1), Register, September, 1986, No. 369, eff. 10-1-86; CR 02-094: am. (1) Register November 2002 No. 563, eff. 12-1-02; renumbered from DWD 80.05 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. (1), (2), cr. (3), (4), (5) Register July 2019 No. 763, eff. 8-1-19, correction in (1) made under s. 35.17., Stats., Register July 2019 No. 763.

HA 4.05 HA 4.05 Appearance by attorney or agent; license to appear.

HA 4.05(1) (1) Any party may appear before the division in person or by an attorney or agent.

HA 4.05(2) (2) The following rules shall govern the issuance, suspension, or revocation of licenses to appear before the division in compensation matters under the provisions of s. 102.17 (1) (c), Stats.:

HA 4.05(2)(a) (a) Permission to appear at a single hearing may be issued by the division through any examiner upon application evidencing qualifications provided by statute and the division’s rules. Such permission may be given to appear in 3 cases before the issuing of license. When appearance has been made in 3 cases, license shall be required, which shall be issued only upon execution and filing with the division of application upon form prescribed by the division.

HA 4.05(2)(b) (b) Before license shall be issued applicant shall have appeared in representation of a party before the division on at least 3 formal hearings.

HA 4.05(2)(c) (c) The following conditions shall operate as grounds for refusal, suspension, or revocation of license:

HA 4.05(2)(c)1. 1. Charging of excessive or unconscionable fees, misrepresentation of clients, dishonesty, fraud, sharp practice, neglect of duty, or other improper conduct in the representation of a party before the division, unless satisfactorily explained or excused by the division on the grounds of subsequent good conduct.

HA 4.05(2)(c)2. 2. Disbarment from the practice of law, or resignation by request of properly constituted authorities, unless there has been subsequent reinstatement and continuance in good standing.

HA 4.05(2)(c)3. 3. Contumacious conduct in hearing, gross discourtesy toward division representatives, or failure to conform to rulings or instructions of the division or its representatives.

HA 4.05(2)(c)4. 4. Intentional or repeated failure to observe provisions of the compensation act or rules of procedure adopted by the division.

HA 4.05(2)(c)5. 5. Any other gross evidence of lack of good moral character, fitness or act of fraud, or serious misconduct.

HA 4.05 History History: CR 18-059: cr. Register July 2019 No. 763, eff. 8-1-19; (1), (2) renumbered from HA 4.05, DWD 80.20 under s. 13.92 (4) (b) 1., Stats., (title) amended under s. 13.92 (4) (b) 2., Stats., correction in (2) (intro.), (a), (b), (c) 1., 3., 4. made under s. 13.92 (4) (b) 6., Stats., and correction in (2) (intro.), (c) (intro.) made under s. 35.17, Stats., Register May 2022 No. 797.

HA 4.06 HA 4.06 Service and filing.

HA 4.06(1) (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.

HA 4.06(2) (2) Filing date. Regardless of how served, materials submitted to the division are considered filed on the date they are received by the division.

HA 4.06 History History: CR 18-059: cr. Register July 2019 No. 763, eff. 8-1-19.

HA 4.07 HA 4.07 Amendments. Amendment may be made to the application or answer by letter mailed to the division 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.

HA 4.07 History History: 1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75; r. and recr. Register, September, 1982, No. 321, eff. 10-1-82.; renumbered from DWD 80.08 (1) 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 4.08 HA 4.08 Witness attendance; extension of time and postponement.

HA 4.08(1) (1) Upon receipt of the notice of hearing, it is the responsibility of each party to contact any witnesses necessary for that party’s case and to make arrangements to have them attend the hearing.

HA 4.08(2) (2) Requests for postponements or continuances shall be considered by the division only if such requests are received within a reasonable time before the date of the hearing.

HA 4.08(3) (3) The division 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.

HA 4.08(4) (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.

HA 4.08 History History: 1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75; r. and recr. Register, September, 1982, No. 321, eff. 10-1-82; renumbered from DWD 80.09 under s. 13.92 (4) (b) 1., correction in (2), (3), (4) under s. 13.92 (4) (b) 6., Stats., Register May 2018 No. 749; CR 18-059: am. (2), (3), (4) Register July 2019 No. 763, eff. 8-1-19.

HA 4.09 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.

HA 4.09 History History: CR 18-059: cr. Register July 2019 No. 763, eff. 8-1-19.

HA 4.10 HA 4.10 Depositions. Depositions may be taken and used in any hearing only in accordance with s. 102.17 (1) (f), Stats. These depositions shall be taken in the same manner as in courts of record. Depositions for the purpose of discovery before the hearing are specifically prohibited.

HA 4.10 History History: 1-2-56; am. Register, April, 1975, No. 232, eff. 5-1-75; am. Register, September, 1982, No. 321, eff. 10-1-82; renumbered from DWD 80.11 under s. 13.92 (4) (b) 1., Register May 2018 No. 749.

HA 4.11 HA 4.11 Rules of practice; selection of hearing site.

HA 4.11(1) (1) 

HA 4.11(1)(a) (a) The rules of practice before the division shall be such as to secure the facts in as direct and simple a manner as possible.

HA 4.11(1)(b) (b) The administrative law judge may limit testimony to only those matters which are disputed.

HA 4.11(1)(c) (c) The 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 administrative law judge.

HA 4.11(2) (2) The division 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. From this list, a hearing site shall be selected at the discretion of the division. The division, in determining the site of the hearing, shall consider all of the following:

HA 4.11(2)(a) (a) The applicant’s location choice.

HA 4.11(2)(b) (b) The location of the office of the treating practitioner or practitioner appointed under s. 102.13 (3) or 102.17, Stats.

HA 4.11(2)(c) (c) The location where the injury occurred.

HA 4.11 History History: Cr. Register, August, 1976, No. 248, eff. 9-1-76; r. and recr. Register, September, 1982, No. 321, eff. 10-1-82; renumbered from DWD 80.12 under s. 13.92 (4) (b) 1., correction in (1) (intro.), (2) (intro.), (b) under s. 13.92 (4) (b) 6., Stats., correction in (2) (b) under s. 35.17, Stats., Register May 2018 No. 749; CR 18-059: am. (1) (a), (b), (c), (2) (intro.), (a), (b) Register July 2019 No. 763, eff. 8-1-19.

HA 4.12 HA 4.12 Audio recording of formal hearings.

HA 4.12(1) (1) 

HA 4.12(1)(a) (a) A party to a claim may audio record the proceedings of a formal hearing in a non-disruptive and non-obstructive manner.

HA 4.12(1)(b) (b) Witnesses, participants, and other attendees, who are not parties to the case, are not permitted to audio record the proceedings of a formal hearing.

HA 4.12(2) (2) A party shall provide verbal notice of audio recording to the presiding administrative law judge and all other parties in attendance at the proceedings of a formal hearing before audio recording of the hearing begins.

HA 4.12(3) (3) The presiding administrative law judge shall determine if a party’s audio recording disrupts or obstructs the hearing.

HA 4.12(4) (4) The presiding administrative law judge may set conditions for audio recording of a formal hearing to avoid disruption or obstruction of the hearing.