Section ETF 11.06 - Evidence at hearing(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.(2) OBJECTIONS. Failure of a party to object on the record to admission of any evidence shall be deemed a waiver of that objection.(4) PRESUMPTIONS. In addition to any other presumptions under applicable law: (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.(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.(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: 1. The e-mail transmission is in a form capable of being processed by the department's information processing system.2. The department is able to retrieve the e-mail from the information processing system.(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.(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.(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.Wis. Admin. Code Department of Employee Trust Funds § ETF 11.06
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.Amended by, correction in (3) (Note) made under s. 13.92(4) (b)., Stats.,Register August 2017 No. 740, eff. 9/1/2017Amended by, 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, eff.6/1/2021