11.01.150 Disputes, Procedure; Notice of Hearing, Witnesses, Contempt; Testimony, Medical Examination

(a)(1) Employees who dispute either the amount and nature of the benefit offered, or are denied benefits by the Tribal Benefit Specialist shall file a dispute as outlined under this section. The Band may bring in additional parties by service of a copy of the application. The Band shall cause notice of hearing on the application to be given to each party interested, by service of such notice on the interested party personally or by mailing a copy to the interested party's last-known address at least 10 days before such hearing. In case a party in interest is located outside the state, and has no post-office address within this state, the copy of the application and copies of all notices shall be filed and sent by registered or certified mail to the last know post office address of such party. Such filing and mailing shall constitute sufficient service, with the same effect as if served upon a party located within this state. A hearing may be adjourned in the discretion of the Band, and hearings may be held at such places as the Band designates.

(2) In any dispute or controversy pending before the Band, the Band may direct the parties to appear before the Tribal Council for a conference to consider the clarification of issues, the joining of additional parties, the necessity or desirability of amendments to the pleadings, the obtaining of admissions of fact or of documents, records, reports and bills which may avoid unnecessary proof and such other matters as may aid in disposition of the dispute or controversy. After this conference the Tribal Council may issue an order requiring disclosure or exchange of any information or written material which it considers material to the timely and orderly disposition of the dispute or controversy. If a party fails to disclose or exchange within the time stated in the order, the Band may issue an order dismissing the claim without prejudice or excluding evidence or testimony relating to the information or written material. The Band shall provide each party with a copy of any order.

(3) All parties shall have the right to be present at any hearing, in person or by attorney, or any other agent, and to present such testimony as may be pertinent to the controversy before the Tribal Council.

(4) The contents of certified medical and surgical reports by physicians, podiatrists, surgeons, dentists, psychologists and chiropractors licensed in and practicing in this state and of certified reports by experts concerning loss of earning capacity presented by a party for compensation constitute prima facie evidence as to the matter contained in them, subject to any rules and limitations the Tribal Council prescribes. Certified reports of physicians, podiatrists, surgeons, dentists, psychologists and chiropractors, wherever licensed and practicing, who have examined or treated the claimant, and of experts, if the practitioner or expert consents to subject himself or herself to cross-examination also constitute prima facie evidence as to the matter contained in them. Certified reports of physicians, podiatrists, surgeons, psychologists and chiropractors are admissible as evidence of the diagnosis, necessity of the treatment and cause and extent of the disability. Certified reports by doctors of dentistry are admissible as evidence of the diagnosis and necessity for treatment but not of disability. The record of a hospital or sanatorium in this state operated by any department or agency of the federal or state government or by any municipality, tribe, or of any other hospital or sanatorium in the State of Wisconsin which is satisfactory to the Tribal Council, established by certificate, affidavit or testimony of the supervising officer or other person having charge of such records, or of a physician, podiatrist, surgeon, dentist, psychologist or chiropractor to be the record of the patient in questions, and made in the regular course of examination of such patient, constitutes prima facie evidence in any worker's compensation proceeding as to the matter contained in it, to the extent that it is otherwise competent and relevant. The Tribal Council may, by rule, establish the qualifications of and the form used for certified reports submitted by experts who provide information concerning loss of earning capacity. The Tribal Council may not admit into evidence a certified report of a practitioners or other expert or a record of a hospital or sanatorium that was not filed with the Tribal Council and all parties in interest at least 7 days before the date of the hearing, unless the Tribal Council is satisfied that there is good cause for the failure to file the report.

(5) The Tribal Council may, with or without notice to either party, cause testimony to be taken, or an inspection of the premises where the injury occurred to be made, or the time books and payrolls of the Band to be examined by any Tribal Council member examiner, and may direct any employee claiming compensation to be examined by a physician, chiropractor, psychologist, dentist or podiatrist. The testimony so taken, and the results of any such inspection or examination, shall be reported to the Tribal Council for its consideration upon final hearing. All ex parte testimony taken by the Tribal Council shall be reduced to writing and either party shall have opportunity to rebut such testimony on final hearing.

(6) Whenever the testimony presented at any hearing indicates a dispute, or is such as to create doubt as to the extent or cause of disability or death, the Tribal Council may direct that the injured employee be examined or autopsy be performed, or an opinion of a physician, chiropractor, dentist, psychologist or podiatrist be obtained without examination or autopsy, but an impartial, competent physician, chiropractor, dentist, psychologist or podiatrist designated by the Tribal Council who is not under contract with or regularly employed by the Band or Insurer. The expense of such examination shall be paid by the Band. The report of such examination shall be transmitted in writing to the Tribal Council and a copy thereof shall be furnished by the Tribal Council to each party, who shall have an opportunity to rebut such report on further hearing.

(b) Any party, including the Tribal Council, may require any person to produce books, papers and records at the hearing by personal service of a subpoena upon the person.

(c) A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence. A subpoena issued by an attorney must be in substantially the same form as provided in the Bad River Tribal Code Section 1.15.010 and must be served in the manner provided in the Bad River Tribal Code Section 1.15.020. The attorney shall, at the time of issuance, send a copy of the subpoena to the appeal tribunal or other representative of the Band responsible for conducting the proceeding.

(d) Any person who shall willfully and unlawfully fail or neglect to appear or testify or to produce books, papers and records as required, shall be fined not less than $25 nor more than $100.00 each day such person shall so refuse or neglect shall constitute a separate offense.

(e) The right of an employee, the employee's legal representative or dependent to proceed under this section shall not extend beyond 12 years from the date of the injury or death or from the date that compensation, other than treatment or burial expenses, was last paid, or would have been payable if no advancement were made, whichever date is latest.

(f) This section does not limit the time within which the Band may bring an action to recover benefits fraudulently obtained.

(g) If an employee or dependent shall, at the time of injury, or at the time the employee's or dependent's right accrues, be under 18 years of age, the limitations of time within which the employee or dependent may file application or proceed under this chapter, if they would otherwise sooner expire, shall be extended to one year after the employee or dependent attains the age of 18 years. If, within part of the last of any such period of limitation, an employee, the employee's personal representative, or surviving dependent be insane or active duty in the armed forces of the United States such period of limitation shall be extended to 2 years after the date that the limitation would otherwise expire. The provision hereof with respect to persons on active duty in the armed forces of the United States shall apply only where no applicable federal statute is in effect.

(h)(1) Testimony or certified reports of expert witnesses on loss of earning capacity may be received in evidence and considered with all other evidence to decide on an employee's actual loss of earning capacity.

(2) Except as provided in par. (c), the Tribal Council shall exclude from evidence, testimony or certified reports from expert witnesses under par. (a) offered by the party that raises the issue of loss of earning capacity if that party failed to notify the Tribal Council and the other parties of interest, at least 60 days before the date of the hearing, of the party's intent to provide the testimony or reports and of the names of the expert witnesses involved. Except as provided in par. (c), the Tribal Council shall exclude from evidence testimony or certified reports from expert witnesses under par. (a) offered by a party of interest in response to the party that raises the issue of loss of earning capacity if the responding party failed to notify the Tribal Council and the other parties of interest, at 45 days before the date of the hearing, of the party's intent to provide the testimony or reports and of the names of the expert witnesses involved.

(3) Unless otherwise agreed to by all parties, an injured employee shall file with the Tribal Council and serve on all parties at least 15 days before the date of the hearing an itemized statement of all medical expenses and incidental compensation claimed by the injured employee. The itemized statement shall include, if applicable, information relating to any travel expenses incurred by the injured employee in obtaining treatment including the injured employee's destination, number of trips, round trip mileage and meal and lodging expenses. The Tribal Council may not admit into evidence any information relating to medical expenses and incidental compensation claimed by an injured employee if the injured employee failed to file with the Band and serve on all parties at least 15 days before the date of the hearing an itemized statement of the medical expenses and incidental compensation claimed by the injured employee, unless the Tribal Council is satisfied that there is good cause for the failure to file and serve the itemized statement.