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Register November 2013 No. 695
Chapter ETF 52
DUTY DISABILITY BENEFITS
ETF 52.01 Purpose and scope.
ETF 52.02 Definitions.
ETF 52.04 Department authority and duties.
ETF 52.06 Application for duty disability benefits.
ETF 52.07 Disability.
ETF 52.08 Qualifying date.
ETF 52.10 Effective date of duty disability benefits.
ETF 52.12 Monthly salary and subsequent adjustments.
ETF 52.14 Duty disability benefits for state employees.
ETF 52.15 Reduction of duty disability monthly salary based on years of service.
ETF 52.16 Reductions in monthly duty disability benefits.
ETF 52.18 Establishing estimated monthly reductions.
ETF 52.20 Collection of excess benefits paid in error.
ETF 52.22 Death benefits.
ETF 52.24 Required reporting by duty disability recipients; failure to submit.
ETF 52.26 Termination of duty disability benefits.
ETF 52.28 Appeals.
Ch. ETF 52 Note Note: Corrections made under s. 13.93 (2m) (b) 6., Stats., Register, January 2004 No. 577.
ETF 52.01 ETF 52.01 Purpose and scope.
ETF 52.01(1)(1)Scope. This chapter applies to the administration of the duty disability program under s. 40.65, Stats.
ETF 52.01(2) (2)Purpose. The purpose of this chapter is to codify the interpretations of s. 40.65, Stats., and general policies adopted by the department with respect to its administration of the duty disability benefit program under s. 40.65 (2) (a) and (b), Stats.
ETF 52.01 History History: Cr. Register, September, 1998, No. 513, eff. 10-1-98.
ETF 52.02 ETF 52.02 Definitions. Unless the context clearly requires otherwise, words, phrases and terms shall have the meanings set forth in s. 40.02, Stats., and s. ETF 10.01. In this chapter:
ETF 52.02(1) (1) "Effective date" means the date determined under s. ETF 52.10.
ETF 52.02(1m) (1m) "Fire fighter" means an employee of the fire department of a participating employer who was classified for that employment as a protective occupation participant as defined in s. 40.02 (48) (b) (2), Stats.
ETF 52.02(2) (2) "Light duty" means the limiting of the participant's job duties as determined by the employer or the participant's physician because of medically imposed restrictions associated with an apparent disability, or the employer's assignment of the participant to another position, the duties of which the participant is capable of performing notwithstanding the apparent disability, and which does not cause the participant to be reclassified to a category other than protective occupation participant.
ETF 52.02(3) (3) "Lump sum payment" means a payment, or that portion of a payment, which covers a period other than the current benefit payment period established for those benefits.
Example: Worker's compensation benefits are payable in weekly payments. If a worker's compensation payment covered this week and the previous 2 weeks, the portion covering the previous 2 weeks would be a lump sum payment. Wisconsin retirement system annuities are payable monthly. A payment covering the previous 12 months, but not the current month, would be a lump sum payment.
ETF 52.02(4) (4) "Medical report" means a written certification on the form prescribed by the department by a physician, as defined in s. 448.01 (5), Stats., who practices in this state, concerning the medical evaluation, diagnosis, prognosis and causal factors of the condition of an applicant for duty disability benefits.
ETF 52.02 Note Note: "Duty Disability Medical Report," form ET-5312.
ETF 52.02(5) (5) "Protective occupation participant" as used in s. 40.65 (4) (intro.), Stats., means a person who was a protective occupation participant within the meaning of s. 40.02 (48), Stats., on the date the injury occurs, or the disease is contracted, which leads to the disability under s. 40.65 (4), Stats.
ETF 52.02(6) (6) "Qualifying date" means the date on which a participant became disabled under s. 40.65 (4), Stats., as determined under s. ETF 52.08.
ETF 52.02(7) (7) "Qualifying medical report" means a medical report, consistent with attached medical records, which certifies that an applicant for duty disability benefits is disabled as described by s. 40.65 (4), Stats.
ETF 52.02(8) (8) "Receiving duty disability benefits" as used in this chapter, or "receiving a benefit under this section" as used in s. 40.65 (6), Stats., refers to a person who has applied for and been found eligible to receive duty disability benefits under s. 40.65, Stats., regardless of the effect of any monthly reductions on the net duty disability benefit payable.
ETF 52.02 History History: Cr. Register, September, 1998, No. 513, eff. 10-1-98; CR 13-029: renum. (4m) to (1m) and am., am. (2) Register November 2013 No. 695, eff. 12-1-13.
ETF 52.04 ETF 52.04 Department authority and duties.
ETF 52.04(1)(1)Administer. The department shall administer the duty disability benefit program on behalf of the Wisconsin retirement board under s. 40.65, Stats., and this chapter.
ETF 52.04(2) (2)Request information. The department may request any income or benefit information, or any information concerning a person's marital status, which it considers to be necessary to determine the amount of each monthly benefit payable under s. 40.65, Stats., and its effective date. The department may require a participant receiving duty disability benefits to submit a copy of his or her state or federal income tax return.
ETF 52.04 Note Note: This rule (CR 09-057) amends s. ETF 52.04 (2) to conform to the treatment of s. 40.65 (3) by 2007 Wis. Act 131 by removing the mandate for the department to obtain a certified copy of each duty disability recipient's tax return each year and treating a failure to provide a tax return, if requested, in the same manner as other refusals to provide requested information.
ETF 52.04(3) (3)Determine benefits. The department shall determine the amount of each monthly benefit payable under this chapter and its effective date. The department shall periodically review the dollar amount of each monthly benefit and adjust it to conform with the provisions of this chapter. The department shall notify the participant of a determination under this subsection.
ETF 52.04(4) (4)Pay benefits. The department shall pay the net duty disability benefits payable to a participant, spouse or domestic partner, or to an adjudicated guardian, as applicable. Payment shall be made on the first day of each month for the previous month.
ETF 52.04 History History: Cr. Register, September, 1998, No. 513, eff. 10-1-98; CR 09-057: am. (2) Register May 2010 No. 653, eff. 6-1-10; CR 13-029: am. (4) Register November 2013 No. 695, eff. 12-1-13.
ETF 52.06 ETF 52.06 Application for duty disability benefits.
ETF 52.06(1)(1)In general. An application for duty disability benefits made on or after May 3, 1988, shall be filed with the department, regardless of whether the person filed an application for duty disability benefits with the former department of labor, industry and human relations prior to May 3, 1988.
ETF 52.06(2) (2)Receipt date.
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)(a) (a) Terminated employment due to disability.
ETF 52.06(3)(b) (b) Assigned to light duty by employer or physician due to disability, on other than a temporary basis regardless of whether a light duty position is available.
ETF 52.06(3)(c) (c) Pay reduced due to disability, on other than a temporary basis.
ETF 52.06(3)(d) (d) Position reduced due to disability, on other than a 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 temporary basis. The rule, ordinance, policy, or agreement shall be written and 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) (5)Application materials; medical reports.
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. The applicant shall provide 2 medical reports at the applicant's expense. One report must be from a physician who specializes in the area of disability. If the first medical report received by the department is not a qualifying medical report, the department shall advise the applicant that the department will deny the application but that the applicant may nevertheless wish to obtain the second medical report from another physician to include in the applicant's file as supporting evidence if the applicant chooses to file an appeal under s. ETF 52.28. 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 "Duty Disability Medical Report," form ET-5312, are available free upon request from the Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707. Outdated versions should not be used and may be rejected.
ETF 52.06(6) (6)Withdrawal of application.
ETF 52.06(6)(a)(a) Voluntary withdrawal. Except as otherwise provided in this paragraph, a participant may withdraw his or her application and, upon withdrawal, the application is void. An applicant may not withdraw his or her application after it has been approved by the department, but may waive future benefits by requesting a waiver from the department.
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 cancelled.
ETF 52.06(7) (7)Required employer certification.
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 by the employer 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 pursuant to s. 891.45 or 891.455, Stats., by a fire fighter, the department shall obtain from the employer a certification including the following:
ETF 52.06(7)(b)1. 1. Whether the participant had served a total of 5 years or more as a fire fighter within the meaning of s. ETF 52.02 (1m). The service need not have been continuous service. The current employer of a fire fighter may verify and certify past qualifying service as a firefighter for the purposes of this subsection.
ETF 52.06(7)(b)2. 2. Whether the participant had served at least 10 years as a fire fighter within the meaning of s. ETF 52.02 (1m). The service need not have been continuous service. The current employer of a fire fighter may verify and certify past qualifying service as a fire fighter for the purposes of this subsection.
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. If no qualifying medical examination is available, the employer must certify that there is no record of a medical examination but one would have been required prior to the participant's hire date.
ETF 52.06(7)(bm) (bm) In addition to the requirements of par. (a), for each application for duty disability benefits pursuant to s. 891.453, Stats., the department shall obtain from the employer a copy of the qualifying medical examination given prior to the time the participant worked for that employer in a position listed in s. 891.453, Stats. If no qualifying medical examination is available, the employer must certify that there is no record of a medical examination, but that one would have been required prior to the participant's hire date.
ETF 52.06(7)(c) (c) The department shall determine whether s. 891.45, 891.453, or 891.455, Stats., applies. The presumptions under ss. 891.45, 891.453, and 891.455, Stats., are rebuttable. The department shall determine whether the applicant is eligible for benefits under s. 40.65, Stats., on the basis of evidence submitted pursuant to s. 40.65 (2) (b) 2., Stats.
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; CR 13-029: am. (3) (b) to (e), (5) (a), (6) (a), (b), (7) (a) 2., (b), cr. (7) (bm), am. (7) (c) Register November 2013 No. 695, eff. 12-1-13.
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)(b) (b) The employer or physician assigns the applicant to light duty regardless of whether a light duty position is available.
ETF 52.07(3)(c) (c) The employer reduces the applicant's pay. Only a reduction in regular monthly earnings meets the requirement of this subsection. Loss of shift differential payments, uniform allowances, or other collateral payments are not reductions 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 between workers' compensation and regular monthly earnings, and if the participant terminates employment while still receiving temporary disability compensation. A situation in which the participant is not working and is not receiving any earnings would be considered a reduction in pay.
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