(2) A commissioner may be recused in any proceeding in which the impartiality of the
commissioner might reasonably be questioned, including, but not limited to, instances in
which the commissioner:
(a) Has a personal bias or prejudice concerning a party or a party’s attorney.
(b) Has personal knowledge of disputed evidentiary facts concerning the proceeding.
(c) Has been consulted or employed as an attorney in the matter in controversy.
(d) Is or was a party.
(e) Was, within the preceding 2 years, a partner of or in an employment relationship with
(f) Was, within the preceding 2 years, attorney for a party or a member of a law firm
representing a party.
(g) Has been a material witness concerning the matter in controversy.
(3) A commissioner may also be recused in any proceeding in which the commissioner,
the commissioner’s spouse, a person within the third degree of relationship to either of
them, or the spouse of such a person is:
(a) A party to the proceeding, or an officer, director, or trustee of a party.
(b) Acting as a lawyer in the proceeding.
(c) Known by the commissioner to have a more than de minimis financial interest that
could be substantially affected by the proceeding.
(d) To the commissioner's knowledge, likely to be a material witness in the proceeding.
(4) A commissioner may be disqualified for any other reason provided by law.
(5) A commissioner who would otherwise be recused under this rule may disclose to the
parties in writing the basis of disqualification and may ask the parties and their attorneys
to consider, outside the commissioner’s presence, whether they wish to waive
disqualification. If following disclosure of any basis for disqualification other than personal
bias or prejudice concerning a party, all parties agree that the commissioner should not be
disqualified, the commissioner may participate in the proceeding. The existence of the
agreement must be incorporated into the hearing record.
(6) Any party seeking to disqualify a commissioner shall so move within 30 days after
receiving notice that the commissioner will participate in the proceeding or upon
discovering facts establishing grounds for disqualification, whichever is later. A motion
for recusal must be made in writing and accompanied by an affidavit setting forth definite
and specific allegations demonstrating the facts upon which the motion for disqualification
is based. An untimely motion may be granted for good cause shown. If a motion is not
timely filed, the commission may consider the untimeliness in deciding whether to grant
(7) The challenged commissioner shall decide the motion. If the challenged commissioner
denies the motion, the challenging party may, within 14 days, submit to the challenged
commissioner or the commission chairperson a request that the motion be referred for
decision to another commissioner assigned by the chairperson subject to the following:
(a) If the chairperson is the challenged commissioner or if the chairperson has an
acknowledged conflict of interest, the commissioner whose participation is not being
challenged shall decide the motion.
(b) If the challenged commissioner is the only commissioner with no acknowledged
conflict of interest, the motion must be referred to the workers’ compensation board of
magistrates for decision by either the chairperson or another magistrate designated by the
(c) Consideration of a referred motion shall be de novo.