(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.
