ORDER OF THE WISCONSIN
DEPARTMENT OF WORKFORCE DEVELOPMENT
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The Wisconsin Department of Workforce Development (Department) adopts the following emergency rule to create DWD 80.05, 80.08, 80.09, 80.11, 80.12, 80.13, 80.14, 80.16, 80.20, 80.22, 80.31 and 80.44 relating to worker's compensation hearings and adjudicatory functions.
The statement of scope for this emergency rule, SS 068-25, was approved by Governor Evers on October 10, 2025, published in the Wisconsin Administrative Register No. 838A2 on October 13, 2025, and approved by the Secretary of the Department of Workforce Development on October 23, 2025. This emergency rule was approved by the Governor on December 5, 2025.
Analysis Prepared by the Department of Workforce Development
Finding of Emergency
The Department finds an emergency exists and that an emergency rule is necessary for the immediate preservation of the public welfare. A statement of the facts constituting the emergency is:
2015 Wisconsin Act 55 transferred statutory authority for worker's compensation adjudicatory functions and related rulemaking authority from the Department to the Division of Hearings and Appeals (DHA) in the Department of Administration. This transfer of statutory authority was effective January 1, 2016. 2015 Wisconsin Act 55, s. 9151 (2) (g) also required the Secretary of Administration to determine which of the Department's rules primarily related to worker's compensation adjudicatory functions in order to transfer those rules to DHA. After the Secretary of Administration made that determination, the Legislative Reference Bureau (LRB) transferred the relevant rules from ch. DWD 80 to ch. HA 4 in the May 29, 2018 administrative register. Because 2015 Wisconsin Act 55 transferred rulemaking authority to DHA for worker's compensation adjudicatory functions and the LRB transferred the relevant rules to DHA, the Department currently has no rules related to worker's compensation adjudication in effect. However, the Department does have some procedural rules related to its administrative functions still in effect in ch. DWD 80.
Worker's compensation adjudicatory functions will be transferred from DHA to return to the Department by 2025 Wisconsin Act 33, effective January 1, 2026. Pursuant to 2025 Wisconsin Act 33, s. 143 (1) (g), DHA rules primarily related to worker's compensation adjudicatory functions in ch. HA 4, as determined by the Department Secretary, are to be transferred to the Department and will be included in ch. DWD. The LRB is authorized to correct rules that will be transferred to the Department subject to the limitations under s. 13.92 (4) (b), Stats. Some of the rules in ch. HA 4 are duplicative of or inconsistent with rules currently in effect in ch. DWD 80 relating to non-adjudicatory matters. This emergency rule makes appropriate amendments in ch. DWD 80 to provide the Department with authority for all procedural matters that will be under its purview as of January 1, 2026, and before the Department is able to promulgate permanent rules. The emergency rule will also allow the Department to make further amendments to procedural rules, as warranted, to ch. DWD 80 when the permanent rule is promulgated.
An emergency rule is necessary and in the best interest of the stakeholders in the Wisconsin worker's compensation system, including injured employees, employers and worker's compensation insurance carriers. During the time the Department needs to complete the process for promulgating permanent rules to conduct worker's compensation adjudicatory functions, an emergency rule is essential for effectively operating adjudicatory functions, including conducting hearings, required in the Wisconsin worker's compensation system. Without the emergency rule there will be confusion and uncertainty for the parties in worker's compensation cases about the rules that apply to litigated cases beginning on January 1, 2026. The return of worker's compensation adjudicatory functions to the Department as provided in 2025 Wisconsin Act 33 cannot be successfully accomplished simply by the Department adopting the language contained in ch. HA 4 that will be transferred to the Department.
Statutes Interpreted
Statutory Authority
Explanation of statutory authority
Section 102.15 (1) (a), Stats., grants the Department the specific authority to promulgate rules necessary to carry out its duties and functions under ch. 102, Stats. Section 103.005 (1), Stats., grants the Department the general authority to adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings.
Related statutes or rules
None, except ch. HA 4, which is discussed above.
Plain language analysis
The emergency rule brings ch. DWD 80 in compliance with 2025 Wisconsin Act 33 by returning adjudicatory procedural provisions to ch. DWD 80 that are necessary for the Department to conduct worker's compensation adjudicatory functions, including hearings. The emergency rule's sections do the following:
Section 1 addresses the procedure for a party to apply to the Department for relief related to disputes under ch. 102, ss. 59.88 (3), 62.624 (2), 106.25, 303.07 (7), 303.21, or 40.65, Stats., or s. 66.191, 1981 Stats., and the procedure for the responding party to file an answer to a hearing application with the Department and other party (s. DWD 80.05).
Section 2 establishes the procedure for a party to file an amended hearing application or answer (s. DWD 80.08).
Section 3 covers the attendance of witness at hearings and the procedure for requesting postponement of hearings (s. DWD 80.09).
Section 4 restricts the use of depositions at hearings (s. DWD 80.11).
Section 5 covers rules of practice at hearings, including hearsay testimony and the selection of locations where hearings will be held (s. DWD 80.12).
Section 6 establishes procedures for a party to audio record a formal hearing (s. DWD 80.13).
Section 7 provides for the production of transcripts of testimony or proceedings at formal hearings (s. DWD 80.14).
Section 8 establishes the procedure for a party to request a conference for the purpose of mediation (s. DWD 80.16).
Section 9 creates the procedure for the Department to issue licenses to appear to persons who are not licensed to practice law in Wisconsin to represent parties in worker's compensation cases (s. DWD 80.20).
Section 10 provides the procedure and requirements for the use of reports from practitioners and expert witnesses as evidence at hearings (s. DWD 80.22).
