ETF 52.06(2)(a)(a) An application for duty disability benefits is initiated on the date the completed form, currently prescribed by the department for that purpose, is received by the department in accord with
s. ETF 10.82.
ETF 52.06(2)(b)
(b) The receipt date for applications filed with the department prior to January 1, 1995, and for application materials filed prior to May 3, 1988, with the former department of industry, labor and human relations, is the date of the receipt stamp affixed to the document by the respective department, absent clear and convincing proof to the contrary.
ETF 52.06(3)
(3) Criteria to be specified. An applicant shall specify which of the following eligibility criteria under s.
40.65 (4) (c), Stats., are satisfied:
ETF 52.06(3)(b)
(b) Assigned to light duty due to disability, on other than a merely temporary basis.
ETF 52.06(3)(c)
(c) Pay reduced due to disability, on other than a merely temporary basis.
ETF 52.06(3)(d)
(d) Position reduced due to disability, on other than a merely temporary basis.
ETF 52.06(3)(e)
(e) Promotion specifically prohibited due to disability by employer rules, ordinances, policies or written agreements, on other than a merely temporary basis. The rule, ordinance, policy or written agreement shall be expressly identified or a copy attached to the application.
ETF 52.06(4)
(4) Employment status. A person who was not both a participating employee and a protective occupation participant both at the time he or she became injured or contracted an occupational disease and when he or she became disabled as described by s.
40.65 (4), Stats., is not eligible for duty disability benefits. For purposes of this subsection only, aggravation of an existing injury or disease is deemed the same as being injured or contracting a disease.
ETF 52.06(5)(a)(a) Upon request, the department shall provide a blank copy of the currently approved application form and a blank copy of the currently approved medical report form to a participant. Upon receipt of an application form and a medical report from a physician chosen by the applicant, the department shall provide the applicant with the name of at least one physician approved by the department to complete a second medical report at the applicant's expense. If the medical report from the physician chosen by the applicant is not a qualifying medical report, the department shall advise the applicant that it will be required to deny the application but that the applicant may nevertheless wish to obtain the second medical report from a physician approved by the department. The department may, by written notice to the applicant, establish a time limit of at least 60 days for submission of the second report.
ETF 52.06(5)(b)
(b) The department may request and consider any information from the physician who completed a medical report which the department deems necessary to supplement or clarify the physician's opinion, evaluation, diagnosis and prognosis concerning the participant's condition and qualification for duty disability benefits.
ETF 52.06 Note
Note: The "Duty Disability Application," form ET-5311, and an initial "Duty Disability Medical Report," form ET-5312, may be obtained at no charge by writing to: department of employee trust funds, P.O. Box 7931, Madison WI 53707-7931, or by calling (608) 266-3285 or toll free at (877) 533-5020.
ETF 52.06(6)(a)(a)
Voluntary withdrawal. A participant may withdraw his or her application and, upon withdrawal, the application is void.
ETF 52.06(6)(b)
(b)
Failure to submit medical reports. If the applicant fails to submit two qualifying medical reports within one year after the date on which the application was filed, and the department has not already denied the application, the application shall be deemed to have been withdrawn with the same effect as under
par. (a).
ETF 52.06(7)(a)(a) For each application for duty disability benefits, the department shall obtain from the employer one of the following:
ETF 52.06(7)(a)1.
1. A certification that the applicant is disabled as described in s.
40.65 (4), Stats., indicating the specific criterion under s.
40.65 (4) (c), Stats., which has been satisfied, and an admission that the injury or disease leading to the disability was duty-related.
ETF 52.06(7)(a)2.
2. A statement that the employer believes the applicant does not qualify for duty disability benefits and the general basis for that belief.
ETF 52.06(7)(b)
(b) In addition to the requirements of
par. (a), for each application for duty disability benefits by a municipal fire fighter, the department shall obtain from the employer a certification including the following:
ETF 52.06(7)(b)3.
3. An attached copy of the qualifying medical examination given prior to the time the participant became a fire fighter for that employer or a certification that there is no record of a medical examination.
ETF 52.06(7)(c)
(c) The department shall determine whether s.
891.45 or
891.455, Stats., applies. If either presumption applies the department may grant an application for duty disability benefits despite an employer assertion that the cancer or heart or respiratory impairment or disease underlying the disability is not due to the participant's occupation. The presumptions under ss.
891.45 and
891.455, Stats., are rebuttable.
ETF 52.06 Note
Note: "Employer Certification – Duty Disability," form ET-5326, will be sent to the employer by the department following receipt of the employee's application for benefits. Outdated versions of the form should not be used and may be rejected.
ETF 52.06(8)
(8) Denial and appeal option absent employer response. If the employer fails, upon request of the department, to provide either the certification or the statement required by
sub. (7), the department shall deny the application. The department shall allow the employer at least 30 days to respond to its request and may grant reasonable extensions of time to the employer.
ETF 52.06(9)
(9) False information. The department may deny the application of any person who submits false information regarding an application for duty disability benefits.
ETF 52.06 History
History: Cr.
Register, September, 1998, No. 513, eff. 10-1-98;
CR 11-040: am. (9)
Register July 2012 No. 679, eff. 8-1-12.
ETF 52.07
ETF 52.07
Disability. A participant is disabled within the meaning of s.
40.65 (4), Stats., if all of the following apply:
ETF 52.07(1)
(1) Work-related. The participant was injured while performing his or her duty as a protective occupation participant of a participating employer or contracted a disease due to that occupation.
ETF 52.07(2)
(2) Permanency. The disability is likely, to a reasonable degree of medical certainty, to be permanent.
ETF 52.07(3)
(3) Severity. The disability is so severe that it causes one or more of the following:
ETF 52.07(3)(a)
(a) The applicant is medically required to terminate the participating employment.
ETF 52.07(3)(c)
(c) The employer reduces the applicant's pay. Only a reduction in base pay meets the criterion of this subsection. Loss of shift differential payments, uniform allowances, or other collateral payments is not a reduction of pay within the meaning of s.
40.65 (4) (c) 2., Stats. Receipt of temporary disability compensation under s.
102.43, Stats., in lieu of regular pay may be a reduction of pay for purposes of duty disability benefit eligibility when the employer does not make up the difference and if the participant terminates employment while still receiving temporary disability compensation.
ETF 52.07(3)(d)
(d) The employer reduces the applicant's position. Assigning a formerly full-time employee to a part-time position is a reduction of position. Assigning the applicant to a position which does not satisfy the criteria under s.
40.02 (48), Stats., defining a protective occupation participant is a reduction of position.
ETF 52.07 Note
Note: See s.
40.02 (48)(b) 1. to
3., Stats., defining "police officer," "fire fighter," "deputy sheriff" and "county traffic police officer," concerning their continuing protective occupation status even if temporarily assigned to other duties.
ETF 52.07(3)(e)
(e) The employer prohibits the applicant from promotion for which the applicant is otherwise fully qualified, solely on the basis of the applicant's disability and under the express terms of a valid state or local employer rule, ordinance, policy, or written agreement which is not superseded by state or federal law.
ETF 52.07(4)
(4) Temporary actions non-qualifying. Assignments to light duty, or reductions in pay or position or promotional opportunities, which are merely temporary in nature, such as actions taken to allow recovery, are not consistent with a permanent disability and do not qualify a participant for duty disability benefits.
ETF 52.07 History
History: Cr.
Register, September, 1998, No. 513, eff. 10-1-98; correction in (3) (c) made under s. 13.93 (2m) ((b) 7., Stats.,
Register January 2004 No. 577.
ETF 52.08(1)(1)
In general. A participant's qualifying date is the date on which he or she becomes disabled within the meaning of s.
40.65 (4), Stats., and
s. ETF 52.07, as determined under this section.
ETF 52.08(2)
(2) Retirement. If eligibility for duty disability benefits is based upon a disability which requires the employee to retire from his or her job, the termination date is the qualifying date.
ETF 52.08(3)
(3) Reduction of pay or position; assignment to light duty. If eligibility for duty disability benefits is based upon a reduction of pay or position or assignment to light duty, then the qualifying date is the date on which the employee began the permanent reduction or assignment. For purposes of this subsection, a reduction or assignment is permanent even if initially characterized as temporary by the employer, if the reduction or assignment remains continuously in effect while the participant is recovering or his or her permanent condition is being assessed and the employer then determines that it is necessary, because of the participant's disability, to make the reduction or assignment permanent, or that employment be terminated. If the participant is restored to the unreduced pay or position then a previous reduction in pay or position was not permanent. If the participant is assigned to full duty then a previous assignment to light duty was not permanent.
ETF 52.08(4)
(4) Promotion prohibited. If eligibility for duty disability benefits is based upon a prohibition against promotion due to a disability, the qualifying date is the date on which the employee became continuously subject to the prohibition.
ETF 52.08 History
History: Cr.
Register, September, 1998, No. 513, eff. 10-1-98.
ETF 52.10
ETF 52.10
Effective date of duty disability benefits. ETF 52.10(1)(1)
Department to establish. The department shall establish an effective date for duty disability benefits for each participant whose application for duty disability benefits is granted. Duty disability benefits are not retroactive. The effective date for duty disability benefits is the later of:
ETF 52.10(1)(a)
(a) The date the participant's application form was received, as determined under
s. ETF 52.06 (2), ignoring any previous applications.
ETF 52.10(2)
(2) If an applicant filed a document with the former department of industry, labor and human relations prior to May 3, 1988, seeking a determination of eligibility for duty disability benefits the department will treat the earliest document filed with respect to each claim as the application form regardless of the document title, including without limitation a request for a hearing or a stipulation between the employer and participant agreeing to the participant's receipt of duty disability benefits.
ETF 52.10 History
History: Cr.
Register, September, 1998, No. 513, eff. 10-1-98.
ETF 52.12
ETF 52.12
Monthly salary and subsequent adjustments. ETF 52.12(1)(1)
Initially determined by employer. A participant's monthly salary shall be initially determined by the employer in whose service the disability occurred by adding together the regular monthly earnings, prorated cash payments, and regular and dependable overtime pay as determined pursuant to the following paragraphs:
ETF 52.12(1)(a)
(a) Regular monthly earnings. The participant's monthly earnings, as defined by s.
40.02 (22), Stats., as of the qualifying date, except as provided in
subds. 1. and
2.
ETF 52.12(1)(a)1.
1. `Exclusions.' All overtime pay, any payments excluded from earnings by s.
40.02 (22) (b), Stats., or any periodic payments made during that month which covered other periods of time, such as a lump sum longevity award, shall be subtracted from the earnings under this paragraph. Additions to pay which the participant was not eligible to receive on the qualifying date and amounts which are not earnings reportable to the Wisconsin retirement system may not be included in the amount under this paragraph.
ETF 52.12(1)(a)2.
2. `Temporary disability compensation; effect.' If the participant is receiving temporary disability compensation under s.
102.43, Stats., as of the qualifying date, and the qualifying date is prior to the termination of employment with the participating employer in whose employment the disabling injury occurred or the occupational disease was contracted, then the participant's regular monthly earnings are the amount of earnings the employee would have received under s.
40.29 (1) (b), Stats., if the disability had not occurred, subject to the exclusions in
subd. 1.
ETF 52.12(1)(b)
(b) Prorated cash payments. A prorated amount reflecting the monthly equivalent of periodic cash payments which are includable in the participant's annual Wisconsin retirement system earnings, except that any category or type of payment for which the participant did not qualify as of the qualifying date may not be included in this proration, regardless of the participant's previous receipt of, or entitlement to, the payments.
ETF 52.12(1)(c)
(c) Regular and dependable overtime pay. A monthly prorated amount for overtime pay which was regularly and dependably received. Subject to
subds. 1. and
2., this amount shall be calculated by taking the number of overtime hours for which the participant was paid in the 5 calendar years preceding the calendar year of the qualifying date, dividing by 60, and multiplying the result by the hourly overtime rate to which the participant was entitled as of the qualifying date. If the participant has been employed by the employer for less than the preceding 5 years, the monthly average of all overtime hours paid shall be multiplied by the hourly overtime rate as of the qualifying date.
ETF 52.12(1)(c)1.
1. If the participant received no overtime from the employer in whose service the disability occurred during one of the 5 years preceding the calendar year of the qualifying date, then no overtime was regularly and dependably received.
ETF 52.12(1)(c)2.
2. If the participant was in a position not eligible for overtime pay on the qualifying date then no overtime pay may be included in the calculation of monthly salary. Eligibility for compensatory time off is not eligibility for overtime. No form of compensatory time off is overtime pay under this paragraph.
ETF 52.12(2)
(2) Review by department. The employer's calculation of a participant's monthly salary will be reviewed by the department. The department shall notify the participant of the department's determination of the monthly salary amount and shall also notify the employer if the determination made by the department differs from the amount provided by the employer.
ETF 52.12(3)
(3) Salary index adjustment. The monthly salary of a participant receiving duty disability benefits shall be adjusted as of each January 1 after the participant's qualifying date, using the salary index for the previous calendar year, in the manner provided by s.
40.65 (6), Stats.
ETF 52.12 History
History: Cr.
Register, September, 1998, No. 513, eff. 10-1-98.
ETF 52.14
ETF 52.14
Duty disability benefits for state employees. ETF 52.14(1)(1) Except as provided in
sub. (2) or
(3), the maximum monthly duty disability benefit payable to a participant who is a state employee is 80% of the participant's monthly salary adjusted as provided in s.
40.65 (5) (b) and
(6), Stats., and
s. ETF 52.12. Except as provided in
sub. (2) or
(3), the department shall withhold an amount equal to 5% of the monthly benefits under this section until the amount payable under s.
40.65 (5) (b) 3., Stats., is determined.
ETF 52.14(2)
(2) The treatment of s.
40.65 (5) (a) and
(b) (intro.), 1985-86 Stats., by
1987 Wis. Act 363, concerning duty disability benefit amounts and withholding 5% pending resolution of worker's compensation benefits, does not apply to a state employee covered by a collective bargaining agreement under subch.
V of ch. 111, Stats., until the office of state employment relations notifies the department that the treatment was approved by the collective bargaining representative and by the joint committee on employment relations.
ETF 52.14(3)
(3) The treatment of s.
40.65 (5) (a) and
(b) (intro.), 1985-86 Stats., by
1987 Wis. Act 363, concerning duty disability benefit amounts and withholding 5% pending resolution of worker's compensation benefits, does not apply to a state employee not covered by a collective bargaining agreement under subch.
V of ch. 111, Stats., until the office of state employment relations notifies the department that the treatment was recommended by the director of the office of state employment relations and approved by the joint committee on employment relations.
ETF 52.14 History
History: Cr.
Register, September, 1998, No. 513, eff. 10-1-98.
ETF 52.16
ETF 52.16
Reductions in monthly duty disability benefits. ETF 52.16(1)(a)(a) Income guarantee. The duty disability benefit for eligible protective occupation participants shall be administered as an income guarantee program. The amount equal to the percentage of monthly salary guaranteed under s.
40.65 (5) (a), Stats., or under
s. ETF 52.14 for state employees to whom s.
40.65 (5) (a), Stats., does not apply, and adjusted under
s. ETF 52.12 (3), is both the guaranteed monthly income amount and the maximum amount payable as monthly duty disability benefits. If the combined income from all sources listed in s.
40.65 (5) (b) 1. to
6., Stats., does not equal or exceed the guaranteed amount, then the difference will be made up by duty disability benefits. To determine the monthly amount of duty disability benefits payable to an eligible person, the department shall determine the dollar amount of the guaranteed percentage of monthly salary then subtract all earnings and OASDHI, unemployment compensation, worker's compensation, disability and retirement benefits as provided in s.
40.65 (5) (b) 1. to
6., Stats., and this section.
ETF 52.16(1)(b)
(b)
Receipt assumed. The department may assume that any benefit or amount listed s.
40.65 (5) (b) 1. to
6., Stats., is payable to a participant until it is determined to the department's satisfaction that the participant is ineligible to receive the benefit or amount.
ETF 52.16(1)(c)
(c)
No carryover. All amounts described in s.
40.65 (5) (b) 1. to
6., Stats., received by a person entitled to duty disability benefits after that person's effective date shall apply to reduce the person's maximum monthly duty disability benefit in the month in which received without any carryover to other months, except that lump sum payments of worker's compensation benefits shall reduce duty disability benefits as provided in s.
40.65 (5) (b) 3., Stats., and
sub. (4) and lump sum payments of disability or retirement benefits under s.
40.65 (5) (b) 4., Stats., shall reduce duty disability benefits as provided in that subdivision.
ETF 52.16(1)(d)
(d)
Limit on reductions. Duty disability benefits for a particular month may not be reduced below zero.
ETF 52.16(2)
(2) Oasdhi benefits. The reduction of monthly duty disability benefits for OASDHI benefits received shall be affected by annual increases in monthly OASDHI benefits. If OASDHI benefits are increased for a month during which the recipient is also entitled to duty disability benefits and the department is administratively unable to immediately adjust the person's monthly duty disability benefits, then any excess duty disability benefits paid for that month as a result shall be treated as an overpayment of duty disability benefits as provided in
s. ETF 52.20.
ETF 52.16(3)
(3) Unemployment compensation. Maximum duty disability benefits shall be reduced by the amount of unemployment compensation benefit paid to the participant for that month regardless of who employed the participant or the nature or period of employment which is the basis for the benefit.
ETF 52.16(4)(a)(a) Withholding requirement. Until the worker's compensation benefits payable to the participant are determined, the department shall withhold from each monthly payment of duty disability benefits an amount equal to 5% of the maximum monthly duty disability benefits, except as otherwise provided by
s. ETF 52.14. For purposes of this subsection, worker's compensation benefits become determined on the following date:
ETF 52.16(4)(a)1.
1. For a case resolved by a compromise agreement, on the date one year after the later of the date the compromise was filed with the department of workforce development or its predecessor or the date an award was entered based on the compromise, provided no application is then pending to review, set aside, or modify the agreement.
ETF 52.16(4)(a)2.
2. In all other cases, on the date an award decision becomes final and is not subject to further review.
ETF 52.16(4)(b)
(b) If a person subject to 5% withholding under
par. (a) subsequently receives a lump sum payment of worker's compensation benefits, including a lump sum payment made pursuant to a compromise settlement under s.
102.16 (1), Stats., the department shall do one of the following:
ETF 52.16(4)(b)1.
1. If the participant receives a lump sum worker's compensation payment or compromise settlement, only the portion of the lump sum which exceeds the accumulated total of the amounts then withheld under this subsection shall be treated as a lump sum under s.
40.65 (5) (b) 3., Stats., for purposes of reducing the participant's monthly duty disability benefits.
ETF 52.16(4)(b)2.
2. If the accumulated total of the amounts withheld under this subsection exceeds the participant's lump sum worker's compensation payment or compromise settlement, then the difference shall be refunded to the participant when the participant's worker's compensation benefits have been determined and the lump sum payment shall not otherwise reduce monthly duty disability benefits.
ETF 52.16(4)(c)
(c) Payable to the participant. Worker's compensation benefits payable to the participant, within the meaning of s.
40.65 (5) (b) 3., Stats., are all worker's compensation benefits other than amounts expressly identified in the worker's compensation order, or order approving a compromise settlement, as being paid to an attorney fees, as medical expenses or reimbursement for other costs.
ETF 52.16(4)(d)
(d) All worker's compensation benefits apply; no carryover except for lump sum payments. Worker's compensation benefits paid to a participant receiving duty disability benefits after the effective date shall reduce the participant's maximum monthly duty disability benefits for the month in which paid, without regard for the nature or date of the injury or the time period covered by the benefits. Any lump sum worker's compensation benefit shall reduce the participant's maximum monthly duty disability benefits as provided in s.
40.65 (5) (b) 3., Stats.
