STATE OF WISCONSIN
DEPARTMENT OF ADMINISRTATION
DIVISION OF HEARINGS AND APPEALS
IN THE MATTER OF RULEMAKING PROCEEDINGS BEFORE DEPARTMENT OF ADMINISRTATION DIVISION OF HEARINGS AND APPEALS
PROPOSED ORDER OF DEPARMENT OF ADMINISTRATION, DIVISION OF HEARINGS AND APPEALS,
ADOPTING RULES (CLEARINGHOUSE RULE )
PROPOSED ORDER
An order of the Department of Administrative, Division of Hearings and Appeals proposes an order to: renumber and amend HA 4.15 (1) to (6); amend HA 4.04 (1) and (2), 4.07, 4.08 (2), (3), and (4), 4.11 (1) and (2) (intro.), (a), and (b), 4.13 (intro.), (1), and (3), 4.15 (title), 4.16, and 4.17, and create 4.01, 4.02, 4.03 and 4.03 (Note), HA 4.04 (3), (4), and (5), 4.05, 4.06, 4.09, 4.14, 4.15(1), and 4.18, relating to rules of procedure for adjudication of worker’s compensation and related claims.
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 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.
