40.52 Annotation
Denial of homosexual employe's request for family coverage for herself and companion did not violate equal protection or prohibition of discrimination on basis of marital status, sexual orientation or gender prohibited by 111.321. Phillips v. Wisconsin Personnel Commission, 167 W (2d) 205, 482 NW (2d) 121 (Ct. App. 1992).
40.52 Annotation
The insurance subrogation law permitting a subrogated insurer to be reimbursed only if the insured has been made whole applies to the state employe health plan. Leonard v. Dusek, 184 W (2d) 267, 516 NW (2d) 463 (Ct. App. 1994).
40.55
40.55
Long-term care coverage. 40.55(1)
(1) Except as provided in
sub. (5), the state shall offer, through the group insurance board, to eligible employes under
s. 40.02 (25) (bm) and to state annuitants long-term care insurance policies which have been approved for sale in this state by the office of the commissioner of insurance and which have been approved for offering under contracts established by the group insurance board if the insurer requests that the policy be offered and the state shall also allow an eligible employe or a state annuitant to purchase those policies for his or her spouse or parent.
40.55(2)
(2) For any long-term care policy offered through the group insurance board, the insurer may impose underwriting considerations in determining the initial eligibility of persons to cover and what premiums to charge.
40.55(4)
(4) The group insurance board may charge a fee to each insurer whose policy is offered under this section, but the fee may not exceed the direct costs incurred by the group insurance board in offering the policy.
40.55(5)
(5) An eligible state employe who elects insurance coverage with a county under
s. 978.12 (6) may not elect coverage under this section.
DISABILITY BENEFITS
40.61
40.61
Income continuation coverage. 40.61(1)
(1) The procedures and provisions pertaining to enrollment, premium transmitted and coverage of eligible employes for income continuation benefits shall be established by contract or rule except as otherwise specifically provided by this chapter.
40.61(2)
(2) Except as provided in
sub. (4), any eligible employe may become covered by income continuation insurance by electing coverage within 30 days of initial eligibility, to be effective as of the first day of the month which begins on or after the date the application is received by the employer, or by electing coverage within 30 days of initially becoming eligible for a higher level of employer contribution towards the premium cost to be effective as of the first day of the month following the date the application is received by the employer for teachers employed by the university and effective as of the following April 1 for all other employes. Any employe who does not so elect at one of these times, or who subsequently cancels the insurance, may not thereafter become insured unless the employe furnishes evidence of insurability under the terms of the contract, or as otherwise provided by rule for employes under
sub. (3), at the employe's own expense or obtains coverage subject to contractual waiting periods if contractual waiting periods are provided for by the contract or by rule for employes under
sub. (3). An employe who furnishes satisfactory evidence of insurability under the terms of the contract shall become insured as of the first day of the month following the date of approval of evidence. The method to be used shall be determined by the group insurance board under
sub. (1).
40.61(3)
(3) Any employer under
s. 40.02 (28), other than the state, may offer to all of its employes an income continuation insurance plan through a program offered by the group insurance board. Notwithstanding
sub. (2) and
ss. 40.05 (5) and
40.62, the department may by rule establish different eligibility standards or contribution requirements for such employes and employers and may by rule limit the categories of employers which may be included as participating employers under this subchapter.
40.61(4)
(4) An eligible state employe who elects insurance coverage with a county under
s. 978.12 (6) may not elect coverage under this section.
40.62
40.62
Income continuation insurance benefits. 40.62(1)(1) The group insurance board shall establish an income continuation insurance plan providing for full or partial payment of the financial loss of earnings incurred as a result of injury or illness with separate provisions for short-term insurance with a benefit duration of no more than one year and long-term insurance covering injury or illness of indefinite duration. Employes insured under the plan shall be eligible for benefits upon exhaustion of accumulated sick leave and completion of the elimination period established by the group insurance board.
40.62(1m)
(1m) Notwithstanding
sub. (1), no employe may be required to use more than 130 days of accumulated sick leave unless required to exhaust accumulated sick leave under
s. 40.63 (1) (c).
Effective date note
NOTE: Sub. (2) is repealed and recreated eff. 7-1-97 by
1995 Wis. Act 27 to read:
Effective date text
(2) Sick leave accumulation shall be determined in accordance with rules of the department, any collective bargaining agreement under subch. I or V of ch. 111, and ss. 13.121 (4), 36.30, 230.35 (2), 233.10, 757.02 (5) and 978.12 (3).
40.63
40.63
Disability annuities. 40.63(1)
(1) Notwithstanding the requirement for creditable service in at least 5 calendar years for retirement annuities under
s. 40.23 (1) (a) and
(am), any participating employe is entitled to a disability annuity from the Wisconsin retirement system, beginning on the date determined under
sub. (8) if, prior to attaining his or her normal retirement date, all of the following apply:
40.63(1)(a)
(a) The employe has earned at least one-half year of creditable service in each of at least 5 calendar years not including any calendar year preceding by more than 7 calendar years the year in which the application for the disability annuity is received by the department, or has earned a total of at least 5 years of creditable service during that period of time, or, if the disability was a result of employment as a participating employe for an employer, last rendered services to a participating employer not more than 2 years prior to the date the application for the disability annuity is received by the department.
40.63(1)(b)
(b) The employe becomes unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration.
40.63(1)(c)
(c) The employe is not entitled to any earnings from the employer and the employer has certified that it has paid to the employe all earnings to which the employe is entitled, that the employe is on a leave of absence and is not expected to resume active service, or that the employe's participating employment has been terminated, because of a disability as described in
par. (b) and as a consequence the employe is not entitled to any earnings from the employer. In this paragraph, "earnings" does not include bonus compensation to which the employe is entitled under
s. 25.156 (7) (a).
40.63(1)(d)
(d) Except as provided in
sub. (8) (h) 2., the employe is certified in writing by at least 2 licensed and practicing physicians approved or appointed by the department, to be disabled as described in
par. (b).
40.63(2)
(2) For purposes of
sub. (1) a participant shall be considered a participating employe only if no other employment which is substantial gainful activity has intervened since service for the participating employer terminated and if the termination of active service for the participating employer was due to disability. For purposes of
sub. (1) an elected official shall be considered to have terminated active service due to disability if a disability is determined, under
sub. (1), to exist at the end of the elected official's term of office.
40.63(3)
(3) For purposes of
sub. (1) (a) only, if a participant was previously receiving a disability annuity which was terminated, the participant is deemed to have received full creditable service for any month for which the previous disability annuity was paid.
40.63(4)
(4) Notwithstanding
sub. (1) (b), a protective occupation participant is not disqualified from receiving a disability annuity if the participant has accumulated 15 or more years of creditable service and would attain age 55 in 60 months or less after the occurrence of disability and the medical evidence, as provided in
sub. (1), establishes a disability to the extent that the participant can no longer efficiently and safely perform the duties required by the participant's position, and that the condition is likely to be permanent.
40.63(5)
(5) The department shall make a report based on the evidence prescribed in
subs. (1) to
(4) as to whether a disability benefit shall be granted and the department shall submit the report to the teachers retirement board for teacher participants and to the Wisconsin retirement board for participants other than teachers. A copy of the report and notice of the date that the report was presented, or will be presented, to the appropriate board and the board's name, shall be mailed to the applicant and to the applicant's former employer. Either the applicant or the employer may request a hearing under
s. 227.44 to contest the department's determination by filing a timely appeal with the appropriate board. If a request for a hearing is not timely filed, and the appropriate board does not disapprove the department's determination or request additional information within the time allowed for filing appeals, the report shall be final. If the board requests additional information, the report shall be final 30 days after the board's receipt of the requested information unless the board disapproves the report. If the report is disapproved, notice of the board's action shall be sent to the applicant and the applicant's former employer. Either the applicant or the employer may contest the board's action by submitting a written request for a hearing under
s. 227.44 to the appropriate board within 30 days following the date on which the notice of the board's action was mailed to the applicant or the employer.
40.63(6)
(6) Any person entitled to payments under this section who may otherwise be entitled to payments under s.
66.191, 1981 stats., may file with the department and the department of industry, labor and job development a written election to waive payments due under this section and accept in lieu of the payments under this section payments as may be payable under s.
66.191, 1981 stats., but no person may receive payments under both s.
66.191, 1981 stats., and this section. However any person otherwise entitled to payments under this section may receive the payments, without waiver of any rights under s.
66.191, 1981 stats., during any period as may be required for a determination of the person's rights under s.
66.191, 1981 stats. Upon the final adjudication of the person's rights under s.
66.191, 1981 stats., if waiver is filed under this section, the person shall immediately cease to be entitled to payments under this section and the system shall be reimbursed from the award made under s.
66.191, 1981 stats., for all payments made under this section.
40.63(7)
(7) If an application, by a participant age 55 or over, or by a protective occupation participant age 50 or over, for any disability annuity is disapproved, the date which would have been the disability annuity effective date shall be the retirement annuity effective date if so requested by the applicant within 60 days of the disapproval or, if the disapproval is appealed, within 60 days of final disposition of the appeal.
40.63(8)
(8) Disability annuity effective dates and amounts shall be determined in the same manner and shall be subject to the same limitations and options as retirement annuities except that separate actuarial tables may be applied and except that:
40.63(8)(a)
(a) The creditable service shall include assumed service between the date the disability occurred, or the last day for which creditable service was earned, if later, and the date on which the participant will reach the participant's normal retirement date. The assumed service shall be prorated if the participant's employment was less than full time.
40.63(8)(b)
(b) For purposes of
s. 40.23 (2m) (e) and
(f) only, the participant is deemed to have attained the participant's normal retirement date on the effective date of the annuity.
40.63(8)(d)
(d) If an annuity option other than the normal form is elected, the amount of the normal form disability annuity which is greater than the normal form retirement annuity to which the participant would be entitled under
s. 40.23, notwithstanding the minimum age requirement for receiving an annuity, shall be a straight life annuity terminating at the death of the annuitant. The balance of the present value of the disability annuity, after providing for the straight life annuity, shall be applied to provide an annuity in the optional form elected.
40.63(8)(f)
(f) If an employer certifies that an employe's date of termination of employment is being extended past the last day worked due to any payment for accumulated sick leave, vacation or compensatory time, a participating employe may file an application for a disability annuity as if the last day worked were the last day paid. Regardless of the application date for a disability annuity, the date of termination of employment for effective date purposes shall be deemed to be the last day for which the participant was paid, including any payment for accumulated leave, but if a disability annuity applicant whose application has been approved dies before the last day paid, but after the last day worked, the effective date is the date of death.
40.63(8)(g)
(g) If processing of an application is delayed more than 12 months beyond the date the application is received by the department because of failure to receive some or all of the evidence required under
subs. (1) to
(4), the application shall be canceled but the applicant may reapply for a disability benefit if otherwise still eligible.
40.63(8)(h)
(h) If an applicant dies prior to the date a decision regarding the approval or disapproval of an application for a disability benefit becomes final under
sub. (5), the application is deemed to have been approved prior to the applicant's death if:
40.63(8)(h)1.
1. The applicant was eligible for the disability benefit;
40.63(8)(h)2.
2. The department received an application for the disability benefit in the form approved by the department and at least one written qualifying medical certification required under
sub. (1) (d); and
40.63(8)(h)3.
3. The applicant dies on or after the date which would have been the effective date of the disability benefit.
40.63(8)(i)
(i) For the purpose of
par. (h) an applicant is conclusively presumed not eligible for a disability benefit if the application is based on an alleged disability which was the basis for a previous application which the department denied.
40.63(9)(a)(a) The board may require that any disability annuitant shall be examined by at least one licensed and practicing physician, designated or approved by the board, during any calendar year the annuitant is receiving the annuity. A written report of the examination in a form approved by the department which shall indicate whether or not the annuitant is still disabled as specified in
sub. (1) (b), shall be filed with the department. This paragraph and
par. (c) shall not apply to any annuitant who has attained the normal retirement date for the annuitant's former participant classification.
40.63(9)(b)
(b) If a disability annuitant, prior to attaining the normal retirement date for the annuitant's former participant classification, receives earnings or other earned income from any source whatsoever for personal services, including services performed on a contractual basis, the annuity shall be suspended, except for any amount provided by additional contributions, and no payment shall be payable after the first of the month in which the earnings or earned income received during any calendar year exceed the amount established under
sub. (11), except that if payment was being made under
sub. (4) the annuity may only be suspended if the annuitant is employed in a law enforcement or fire fighting capacity and then the suspension shall be effective immediately. The suspended amount shall be reinstated on January 1 following the date of suspension, or, if earlier, on the first day of the 2nd month following the termination of personal services. An amount, which is reinstated in any calendar year, other than on January 1 of the calendar year, shall again be suspended for any subsequent month in the calendar year following a month in which the disability annuitant receives any amount of earnings or earned income for personal services. The department may request any earnings or compensation information as it deems necessary to implement the provisions of this paragraph and
par. (c).
40.63(9)(c)
(c) The disability annuity shall be terminated and no payment shall be payable after the first of the month in which a determination is made by the department that:
40.63(9)(c)1.
1. The written physician's report required in
par. (a) indicates that the annuitant has recovered from the disability so the annuitant is no longer disabled to the extent required under
sub. (1) (b);
40.63(9)(c)2.
2. The annuitant refuses to submit to an examination under
par. (a); or
40.63(9)(c)3.
3. The annuitant refuses to submit information regarding earnings or compensation as requested by the department.
40.63(9)(d)
(d) If the department terminates a disability annuity under this subsection, the department shall make a report which shall include the department's determination and the reasons for the determination. The department shall submit the report to the teachers retirement board for teacher participants and to the Wisconsin retirement board for participants other than teachers. A copy of the report and notice of the date that the report was presented, or will be presented to the appropriate board, and the board's name, shall be mailed to the affected annuitant. An annuitant may request a hearing under
s. 227.44 to contest the department's determination by filing a timely appeal with the appropriate board. If a request for a hearing is not timely filed, and the appropriate board does not disapprove the department's determination or request additional information within the time allowed for filing appeals, the report shall be final. If the board requests additional information, the report shall be final 30 days after the board's receipt of the requested information unless the board disapproves the department's determination.
40.63(10)
(10) Upon termination of an annuity in accordance with
sub. (9), each participant whose annuity is so terminated shall, as of the beginning of the calendar month following termination, be credited with additional contributions equal to the then present value of the portion of the terminated annuity which was originally provided by the corresponding type of additional contributions. Except for additional contributions, the retirement account of the participant shall be reestablished as if the terminated annuity had never been effective, including crediting of interest and of any contributions and creditable service earned during the period the annuity was in force.
40.63(11)
(11) In this section "substantial gainful activity" means employment for which the annual compensation exceeds, for determinations made in the calendar year commencing on January 1, 1982, $3,600 or, for determinations made in subsequent calendar years, the amount applied under this section in the previous calendar year increased by the salary index and ignoring fractions of the dollar.
40.65
40.65
Duty disability and death benefits; protective occupation participants. 40.65(2)(a)(a) This paragraph applies to participants who first apply for benefits before May 3, 1988. Any person desiring a benefit under this section must apply to the department of industry, labor and job development, which department shall determine whether the applicant is eligible to receive the benefit and the participant's monthly salary. Appeals from the eligibility decision shall follow the procedures under
ss. 102.16 to
102.26. If it is determined that an applicant is eligible, the department of industry, labor and job development shall notify the department of employe trust funds and shall certify the applicant's monthly salary. If at the time of application for benefits an applicant is still employed in any capacity by the employer in whose employ the disabling injury occurred or disease was contracted, that continued employment shall not affect that applicant's right to have his or her eligibility to receive those benefits determined in proceedings before the department of industry, labor and job development or the labor and industry review commission or in proceedings in the courts. The department of industry, labor and job development may promulgate rules needed to administer this paragraph.
40.65(2)(b)1.1. This paragraph applies to participants who first apply for benefits under this section on or after May 3, 1988.
40.65(2)(b)2.
2. An applicant for benefits under this section shall submit or have submitted to the department an application that includes written certification of the applicant's disability under
sub. (4) by at least 2 physicians, as defined in
s. 448.01 (5), who practice in this state and one of whom is approved or appointed by the department, and a statement from the applicant's employer that the injury or disease leading to the disability was duty-related.
40.65(2)(b)3.
3. The department shall determine whether or not the applicant is eligible for benefits under this section on the basis of the evidence in
subd. 2. An applicant may appeal a determination under this subdivision to the department of industry, labor and job development.
40.65(2)(b)4.
4. In hearing an appeal under
subd. 3., the department of industry, labor and job development shall follow the procedures under
ss. 102.16 to
102.26.
40.65(2)(b)5.
5. The department shall be an interested party in an appeal under
subd. 3., and the department shall receive legal assistance from the department of justice, as provided under
s. 165.25 (4).
40.65(3)
(3) The Wisconsin retirement board shall determine the amount of each monthly benefit payable under this section and its effective date. The board shall periodically review the dollar amount of each monthly benefit and adjust it to conform with the provisions of this section. The board may request any income or benefit information, or any information concerning a person's marital status, which it considers to be necessary to implement this subsection and shall require a participant to submit a certified copy of his or her most recent state or federal income tax return. The board may terminate the monthly benefit of any person who refuses to submit information requested by the board or who submits false information to the board.
40.65(4)
(4) A protective occupation participant is entitled to a duty disability benefit as provided in this section if:
40.65(4)(a)
(a) The employe is injured while performing his or her duty or contracts a disease due to his or her occupation;
40.65(4)(b)
(b) The disability is likely to be permanent; and
40.65(4)(c)1.1. The disability causes the employe to retire from his or her job;
40.65(4)(c)2.
2. The employe's pay or position is reduced or he or she is assigned to light duty; or
40.65(4)(c)3.
3. The employe's promotional opportunities within the service are adversely affected if state or local employer rules, ordinances, policies or written agreements specifically prohibit promotion because of the disability.
40.65(4m)
(4m) A protective occupation participant who is a state motor vehicle inspector hired on or after January 1, 1968, is not entitled to a duty disability benefit under this section for an injury or disease occurring before May 1, 1990.
40.65(4r)
(4r) A protective occupation participant who is an emergency medical technician is not entitled to a duty disability benefit under this section for an injury or disease occurring before the date on which the department receives notification of the participant's name as provided in
s. 40.06 (1) (d) and
(dm).
40.65(5)(a)(a) The monthly benefit payable to participants who qualify for benefits under
s. 40.63 or disability benefits under OASDHI is 80% of the participant's monthly salary adjusted under
par. (b) and
sub. (6), except that the 80% shall be reduced by 0.5% for each month of creditable service over 30 years or over 25 years for persons who are eligible for benefits under
subch. II at the date of application, but not to less than 50% of the participant's monthly salary. For participants who do not qualify for benefits under
s. 40.63 or disability benefits under OASDHI, the monthly benefit under this section is 75% of the participant's monthly salary adjusted under
par. (b) and
sub. (6), except that the 75% shall be reduced by 0.5% for each month of creditable service over 30 years or over 25 years for persons who are eligible for benefits under
subch. II on the date of application.
40.65(5)(b)
(b) The Wisconsin retirement board shall reduce the amount of a participant's monthly benefit under this section by the amounts under
subds. 1. to
6., except that the board may determine not to reduce a participant's benefit because of income related to therapy or rehabilitation. The Wisconsin retirement board may assume that any benefit or amount listed under
subds. 1. to
6. is payable to a participant until it is determined to the board's satisfaction that the participant is ineligible to receive the benefit or amount, except that the department shall withhold an amount equal to 5% of the monthly benefit under this section until the amount payable under
subd. 3. is determined.
40.65(5)(b)1.
1. Any OASDHI benefit payable to the participant or the participant's spouse or a dependent because of the participant's work record.
40.65(5)(b)2.
2. Any unemployment compensation benefit payable to the participant because of his or her work record.
40.65(5)(b)3.
3. Any worker's compensation benefit payable to the participant, including payments made pursuant to a compromise settlement under
s. 102.16 (1). A lump sum worker's compensation payment or compromise settlement shall reduce the participant's benefit under this section in monthly amounts equal to 4.3 times the maximum benefit which would otherwise be payable under
ch. 102 for the participant's disability until the lump sum amount is exhausted.
40.65(5)(b)4.
4. Any disability and retirement benefit payable to the participant under this chapter, or under any other retirement system, that is based upon the participant's earnings record and years of service. A reduction under this subdivision may not be greater in amount than the amount of disability or retirement benefit received by the participant. If the participant is not eligible for a retirement benefit because he or she received a lump sum payment or withdrew his or her contributions on or after the date the participant became eligible to receive a benefit under this section, the amount received or withdrawn shall reduce the participant's benefit under this section in the amount of benefit that would be payable if, on the date the amount was received or withdrawn, the full amount received or withdrawn was applied under
s. 40.23 (2m) (d) as additional employe contributions credited to the participant's account.
40.65(5)(b)5.
5. All earnings payable to the participant from the employer under whom the duty disability occurred.
40.65(5)(b)6.
6. All earnings payable to the participant from an employer, other than the employer under whom the duty disability occurred, and all income from self-employment, the total of such earnings and income shall reduce the participant's benefit as follows:
40.65(5)(b)6.a.
a. For the amount of the total that is less than 40% of the participant's monthly salary, one-third of such amount;
40.65(5)(b)6.b.
b. For the amount of the total that is from 40% to 80% of the participant's monthly salary, one-half of such amount; and
