Chapter ETF 52

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.

ETF 52.07(3)(d) (d) The employer reduces the applicant’s position. Assigning a formerly full-time employee to a part-time position or reducing a part-time employee’s hours is considered a reduction of position for the purposes of this chapter. An employee who never returns to work after the date of their injury is also considered to have received a reduction in position for the purposes of this chapter if they do not meet any other qualifying criteria prior to or other than retirement. 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 for the purposes of this chapter.

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 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; CR 13-029: am. (3) (b) to (d), (4) Register November 2013 No. 695, eff. 12-1-13; CR 23-023: am. (3) (d) Register May 2024 No. 821, eff. 6-1-24.

ETF 52.08 ETF 52.08 Qualifying date.

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 or physician, 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 or physician 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; CR 13-029: am. (3) Register November 2013 No. 695, eff. 12-1-13.

ETF 52.10 ETF 52.10 Effective date of duty disability benefits. 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) (1) 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) The participant’s qualifying date.

ETF 52.10 History History: Cr. Register, September, 1998, No. 513, eff. 10-1-98; renum. (1), r. (2) Register May 2024 No. 821, eff. 6-1-24; (1) (title) repealed under s. 13.94 (4) (b) 2., Stats., Register May 2024 No. 821.

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.’ “Regular monthly earnings” for the purposes of this section do not include:

ETF 52.12(1)(a)1.a. a. Overtime pay.

ETF 52.12(1)(a)1.b. b. Any payments excluded from earnings by s. 40.02 (22) (b), Stats.

ETF 52.12(1)(a)1.c. c. Any periodic payments made during any month which covered other periods of time, such as a lump sum longevity award.

ETF 52.12(1)(a)1.d. d. Amounts which are not earnings reportable to the Wisconsin retirement system.

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. This includes lump sum payments for accumulated leave that are made at least once per calendar year to all employees, within a bargaining unit, specific employment category, classification or those whose job description contains the same primary job duties, regardless of whether an employee terminates employment during that year. This includes any unused compensatory time that is converted to pay in a lump sum payment if not due to termination of employment. Such payments are divided by 12 and the result is added to the participant’s regular monthly earnings. Lump sum payments may only be included as prorated cash payments if, as of the participant’s duty disability qualifying date:

ETF 52.12(1)(b)1. 1. The participant would have been in a position that was eligible for the pro-rated lump sum payment regardless of if or when paid; and

ETF 52.12(1)(b)2. 2. The participant would have received the lump sum payment in the calendar year of the participant’s duty disability qualifying date.

ETF 52.12(1)(c) (c) Regular and dependable overtime pay. For the purposes of this chapter, regular and dependable overtime pay means hours that are worked or for which an employee is required to be on call or standby by the employer, above the normal work hours. For the purposes of this paragraph, normal work hours are 80 hours in a biweekly pay period unless otherwise specifically designated by union contract. As set forth in this paragraph, 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. 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. No form of compensatory time off, even if converted to pay, 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; CR 13-029: renum. (1) (a) 1. to (1) (a) 1. (intro.), a. to d. and am., renum. (1) (b) to (1) (b) (intro.), cr. (1) (b) 1., 2., renum. (1) (c) (intro.), 1., 2. to (1) (c) and am. Register November 2013 No. 695, eff. 12-1-13.

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 Note Note: See 1987 Wis. Act 363, section 11 (2), concerning initial applicability.

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 Note Note: See 1987 Wis. Act 363, section 11 (3), concerning initial applicability.

ETF 52.14 History History: Cr. Register, September, 1998, No. 513, eff. 10-1-98.

ETF 52.15 ETF 52.15 Reduction of duty disability monthly salary based on years of service.

ETF 52.15(1) (1) As of the date of receipt of the duty disability application, the department shall apply s. 40.65 (5) (a), Stats., as follows:

ETF 52.15(1)(a) (a) If creditable service is 25 years or less, no reduction will be applied.

ETF 52.15(1)(b) (b) If the participant is eligible for benefits under subchapter II of ch. 40, Stats., the reduction will be 0.5% for each month of creditable service over 25 years.

ETF 52.15(1)(c) (c) If the participant is not eligible for benefits under subchapter II of ch. 40, Stats., the reduction will be 0.5% for each month of creditable service over 30 years.

ETF 52.15(1)(d) (d) The duty disability monthly salary will not be reduced to less than 50% if the participant qualifies for benefits under s. 40.63, Stats., subchapter III of ch. ETF 50, or disability benefits under OASDHI.

ETF 52.15(2) (2) For purposes of this section, to be eligible for benefits under subchapter II of ch. 40, Stats., on the date the duty disability application is received by the department, the participant must have terminated from covered employment and the participant may not have been approved for benefits under s. 40.63, Stats., or benefits under subchapter III of ch. ETF 50.

ETF 52.15(3) (3) Except as otherwise provided in sub. (4), for purposes of this section, creditable service includes military service if, as of the date of receipt of the application:

ETF 52.15(3)(a) (a) The service has already been credited to the participant’s WRS record; or

ETF 52.15(3)(b) (b) The department has received all documentation required for crediting military service for the participant.

ETF 52.15(4) (4) Military service will not be considered if the documentation required for crediting military service is received by the department after the date the department receives the duty disability application.

ETF 52.15 History History: CR 13-029: cr. Register November 2013 No. 695, eff. 12-1-13.

ETF 52.16 ETF 52.16 Reductions in monthly duty disability benefits.

ETF 52.16(1) (1) In general.

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) (4) Worker’s compensation.

ETF 52.16(4)(a) (a) Withholding requirement. Until the worker’s compensation permanent disability benefits payable to the participant are paid or otherwise 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.

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 between the duty disability benefit that was paid and the benefit that would have been paid had the 5% not been withheld 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 as attorney fees, as medical expenses or as reimbursement for other costs, or any amounts awarded under s. 102.18 (1) (bp) or 102.22 (1), Stats.

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.

ETF 52.16(5) (5) Disability and retirement benefits.

ETF 52.16(5)(a) (a) Lump sum payments. The treatment under s. 40.65 (5) (b) 4., Stats., of the full amount received as a lump sum benefit applies only to lump sum benefits received under s. 40.25, Stats. Lump sum payments received from any other retirement system shall reduce duty disability benefits for the month in which received only.

ETF 52.16(5)(b) (b) Disability annuity alternatives. Monthly duty disability benefits shall be reduced by benefits received under s. ETF 50.52 (1). Notwithstanding s. 40.65 (5) (c), Stats., if the employee trust funds board determines that some or all of a disability annuity benefit provided from the Wisconsin retirement system shall instead be provided through group insurance plans established by the group insurance board, then benefits received under the insurance plan shall reduce monthly duty disability benefits as did the disability annuity benefits.

ETF 52.16(5)(c) (c) Benefits payable to non-vested participants. Monthly duty disability benefits shall be reduced by benefits payable to a non-vested participant under s. 40.25 (2), Stats., at age 50.

ETF 52.16(6) (6) Earnings; income from therapy or rehabilitation. The department may elect not to reduce a participant’s benefit because of income related to therapy or rehabilitation, following written request by the participant.

ETF 52.16 History History: Cr. Register, September, 1998, No. 513, eff. 10-1-98; CR 13-029: renum. (4) (a) (intro.) to (4) (a) and am., r. (4) (a) 1., 2., am. (4) (c) Register November 2013 No. 695, eff. 12-1-13; CR 14-055: cr. (5) (c) Register May 2015 No. 713, eff. 6-1-15; CR 19-097: am. (4) (b) 2. Register May 2021 No. 785, eff. 6-1-21.

ETF 52.18 ETF 52.18 Establishing estimated monthly reductions.

ETF 52.18(1) (1) The department may reduce monthly duty disability benefits consistently during a year by estimating applicable reductions and correcting any resulting over- or under-payments in an annual reconciliation.

ETF 52.18(2) (2) The department shall provide each participant receiving duty disability benefits with a written statement showing the monthly salary amount, effective date, maximum amount of duty disability benefits and reductions to monthly benefits.

ETF 52.18 Note Note: “Monthly Payment and Offsets,” Form ET-5507.

ETF 52.18(3) (3) A participant eligible to receive duty disability benefits may request that his or her estimated reductions be adjusted to more accurately conform to anticipated income from sources specified in s. 40.65 (5) (b), Stats.

ETF 52.18 History History: Cr. Register, September, 1998, No. 513, eff. 10-1-98.

ETF 52.20 ETF 52.20 Collection of excess benefits paid in error. The department shall inform the participant of any overpayment of duty disability benefits as identified and determined by the department. If not immediately repaid by the participant, the department shall utilize its authority under s. 40.08 (4), Stats., to collect the amount overpaid and the interest it determines to be due.

ETF 52.20 History History: Cr. Register, September, 1998, No. 513, eff. 10-1-98.

ETF 52.22 ETF 52.22 Death benefits.

ETF 52.22(1) (1) Fatalities. For purposes of paying a death benefit under s. 40.65 (7) (am), Stats., and sub. (2), a protective occupation participant who suffers fatal injury while performing the participant’s duty, or who dies due to a disease contracted due to the participant’s occupation, is deemed to have died as the result of an injury for which a benefit would be payable under s. 40.65 (4), Stats., even if there was no inability to perform the job immediately prior to death.

ETF 52.22(2) (2) State employee death benefits. Except as provided in par. (a) or (b), death benefits with respect to deceased state employee participants receiving duty disability benefits are determined under s. 40.65 (7), Stats.

ETF 52.22(2)(a) (a) The treatment of s. 40.65 (7) (a) (intro.) and (am), 1985-86 Stats., by 1987 Wis. Act 363, affecting death 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 52.22 Note Note: See 1987 Wis. Act 363, section 11 (2), concerning initial applicability.