Section ETF 11.08 - Final disposition by hearing examiner(1) The hearing examiner's findings, conclusions and order dismissing an appeal as provided in this section shall be the final decision of the board.(2) The hearing examiner shall prepare and issue a dismissal, in the form and manner required by this chapter for a final decision, under the following circumstances:(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.(b) If the examiner determines that the appeal is wholly or partially time-barred for one or more of the following reasons: 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.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.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.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.(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.(d) The appellant does not have a substantial interest affected by the determination made by the department.(e) There is no material issue of fact or law and under the undisputed material facts and law, the appellant is ineligible for the claimed right or benefit or fails to meet all the qualifications for the claimed right or benefit established by statute, administrative rule and applicable contract.(f) No issue has been identified which can be resolved by the hearing examiner or board under this chapter or ch. 40, Stats.(g) There is no remaining issue to be decided from the issues that are set forth in the department determination letter.(3) In addition to final decision-making authority granted by sub. (2), the hearing examiner shall also make the final decision of the board if the issues on appeal are limited to one or more of the following: (a) The numeric result of a mathematical calculation by the department, not involving any challenge to the application of law in choosing the appropriate values or formulas used to make the calculation.(b) The amount of a reduction in duty disability benefits under s. 40.65, Stats., resulting from receipt of other benefits.(c) The appeal of denial of a disability annuity under s. 40.63, Stats., where the sole reason for the department's denial was that the employer did not certify as provided in s. 40.63(1) (c), Stats., that the employee's leave of absence or termination was the result of the disability.(4) The hearing examiner shall issue the final decision of an appeal if the board has adopted a motion delegating final decision making authority to the hearing examiner for that specific appeal.(5) The hearing examiner shall not exercise final decision-making authority under sub. (2) (c), (d) or (e), (3) or (4), if the decision necessarily involves the interpretation of a statute, rule or clause of a contract authorized under ch. 40, Stats., which the examiner finds to be ambiguous. The hearing examiner shall prepare a proposed decision and allow the board to make the necessary interpretation.(5m) The hearing examiner shall issue the final decision of an appeal if each of the parties informs the hearing examiner in writing that they agree to have the appeal decided pursuant to a motion for summary judgment. The motion must be filed with the hearing examiner and include the signatures of the parties.(6) The hearing examiner may issue a proposed decision if the grant of final authority under this section is not, in the examiner's opinion, clearly applicable to the particular appeal before the examiner.Wis. Admin. Code Department of Employee Trust Funds § ETF 11.08
Cr. Register, June, 1992, No. 438, eff. 7-1-92; CR 11-040: am. (2) (b) 1. Register July 2012 No. 679, eff. 8-1-12; CR 11-044: am. (2) (b) 1., cr. (2) (f), (g), (5m) Register July 2012 No. 679, eff. 8-1-12.Amended by, correction in (2) (b) 4. made under s. 13.92(4) (b) 7., Stats., Register November 2018 No. 755, eff. 12/1/2018Amended by, CR 19-126: am. (2) (b) 3. Register May 2021 No. 785, eff.6/1/2021