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(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(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 HistoryHistory: 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(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 11.08(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.