Chapter ETF 52

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(2) (2) Receipt date. 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(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; CR 23-023: r. (1), renum. (2) (a) to (2), r. (2) (b) Register May 2024 No. 821, eff. 6-1-24.

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.

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