What Happens at a Worker's Compensation Hearing?
A hearing may be necessary to resolve a disputed claim. Most hearings are set after an employee, surviving spouse or dependant files an application for hearing (WKC-7). This form can be obtained from the Worker's Compensation Division. Some hearings are also scheduled on the Division's own motion in situations where there is reason to believe payment of compensation has not been made.
Hearings are scheduled at various locations throughout the state. The geographical location for the hearing is determined by the location of the employee's residence, where the injury occurred and the location of the employee's treating practitioner. After a hearing date is set, all parties are notified by a written notice. The notice of hearing is usually mailed to the parties eight to ten weeks in advance, but hearings may be scheduled on as little as a ten day prior notice.
Any party may be represented by an attorney. However, a party is not required to have an attorney at a hearing. An attorney representing an injured employee is entitled to fees of up to 20 percent of the amount of compensation in dispute or, if there is no net gain over the amount offered by the employer or insurance carrier, the attorney is entitled to fees of 10 percent to a maximum of $250. Attorney fees and necessary costs will be deducted from payments to the employee or the dependants. The Administrative Law Judge (ALJ) will determine the amount of attorney fees.
If an employee is not represented by an attorney, the Division will schedule a pre-hearing conference after an application for hearing is filed. The purpose of this conference is to permit the parties to discuss the claim informally with an ALJ. The ALJ will attempt to have the parties identify conceded and disputed issues and to encourage the parties to agree on exhibits which may be introduced at a hearing. At a pre-hearing conference it is often possible for the parties to come to an agreement that will eliminate the need for a hearing. A formal hearing will be scheduled at a later date if the parties cannot resolve the case at a pre-hearing conference.
Formal hearings are held with an ALJ. These are semi-judicial proceedings. Witnesses are sworn in before testifying as in a court room. The parties have a right to present their own witnesses and cross-examine witnesses presented by other parties. Exhibits of documents and reports are entered into the formal hearing record. A court reporter records all testimony. Hearings generally result in payment of some or all of a claim or dismissal of the application.
All parties should be aware of the following in preparing for a hearing:
- As soon as possible after the notice of hearing is received contact necessary witnesses and arrange to have them attend the hearing .
- The Division may not receive evidence about an employee's loss of earning capacity unless notice of the intention to present this evidence and the name of the expert witness is given at least 60 days before the hearing.
- Employees must file with the Division and the insurance carrier's attorney certified medical reports (WKC-16B) and a medical treatment statement (WKC-3-E) at least 15 days before the hearing.
- The employee has the burden to present evidence of facts necessary to establish compensability of the claim in all cases including those in which the hearing was scheduled on the Division's own motion.
- Postponement must be submitted in writing to the Division within seven days after the notice was issued with copies to all other parties.
- Postponements will be approved by the Division because of extraordinary circumstances and will not be allowed for the convenience of the parties.
- Failure to appear at a hearing as scheduled may result in a dismissal of the application or a decision by default.
The ALJ will gather all the facts at the hearing. After the hearing the ALJ will issue an order (decision) that either allows or denies the claim. If the claim is allowed, an order will be issued stating the amount of disability and how much compensation and/or medical expense is to be paid.
Any party has the right to appeal an ALJ order. If a party wishes to appeal an order, a Petition for Commission Review (WKC-28) must be filed within 21 days of the mailing date of the ALJ order. On this form the appealing party states the points of disagreement with the order. The Labor Industry Review Commission (LIRC) will review the hearing record. LIRC can affirm, set aside or modify the ALJ order. All parties will receive a copy of the LIRC decision. Any party may also appeal the LIRC decision to the Circuit Court, Court of Appeals and, ultimately, the Wisconsin Supreme Court.
- Tell your supervisor that you are hurt immediately, even if you think your injury is minor and will heal without medical attention.
- Obtain any necessary medical attention. Which may be getting first aid, seeing a doctor or going to the emergency room.
- Maintain all relevant medical and payment records for possible future use.