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.
40.63 Annotation
Under sub. (1) (c), the employer's failure to certify that it terminated the employee because of a disability was fatal to an application for disability benefits. State ex. rel Bliss v. Wisconsin Retirement Board,
216 Wis. 2d 222,
576 N.W.2d 76 (Ct. App. 1998).
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 workforce 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 workforce development shall notify the department of employee 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 workforce development or the labor and industry review commission or in proceedings in the courts. The department of workforce 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 workforce development.
40.65(2)(b)4.
4. In hearing an appeal under
subd. 3., the department of workforce 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 employee 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 employee to retire from his or her job;
40.65(4)(c)2.
2. The employee's pay or position is reduced or he or she is assigned to light duty; or
40.65(4)(c)3.
3. The employee'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(4v)
(4v) A state probation and parole officer who becomes a protective occupation participant on or after January 1, 1999, is not entitled to a duty disability benefit under this section for an injury or disease occurring before January 1, 1999.
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 insurance 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 employee 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
40.65(5)(b)6.c.
c. For the amount of the total that is more than 80% of the participant's monthly salary, two-thirds of such amount.
40.65(5)(c)
(c) The Wisconsin retirement board may not reduce a participant's benefit because of income or benefits that are attributable to the earnings or work record of the participant's spouse or other member of the participant's family, or because of income or benefits attributable to an insurance contract, including income continuation programs.
40.65(6)
(6) The Wisconsin retirement board shall adjust the monthly salary of every participant receiving a benefit under this section using the salary index for the previous calendar year as follows:
40.65(6)(a)
(a) For the purposes of
sub. (5) (b) 6., annually on January 1 until the participant's death;
40.65(6)(b)
(b) For the purposes of
sub. (5) (a), if the participant is receiving an annuity under
s. 40.63 (1), annually on January 1 until the participant's death; and
40.65(6)(c)
(c) For the purposes of
sub. (5) (a), if the participant is not receiving an annuity under
s. 40.63 (1), annually on January 1 until the first January 1 after the participant's 60th birthday. Beginning on the January 1 after the participant's 60th birthday the participant's monthly salary shall be increased annually in a percentage amount equal to the percentage amount of dividend awarded under
s. 40.27 (2) until the participant's death. Notwithstanding
s. 40.27 (2), any benefits payable under this section are not subject to distribution of annuity reserve surpluses.
40.65(7)(a)(a) This paragraph applies to benefits based on applications filed before May 3, 1988. If a protective occupation participant dies as a result of an injury or a disease for which a benefit is paid or would be payable under
sub. (4), and the participant is survived by a spouse or an unmarried child under age 18, a monthly benefit shall be paid as follows:
40.65(7)(a)1.
1. To the surviving spouse, if the spouse was married to the participant on the date the participant was disabled within the meaning of
sub. (4), one-third of the participant's monthly salary as reflected at the time of death until the surviving spouse marries again.
40.65(7)(a)2.
2. To the guardian of a surviving unmarried child under age 18, $15 per child until the child marries, dies or reaches 18 years of age.
40.65(7)(a)3.
3. The total monthly amount paid under
subds. 1. and
2. may not exceed 65% of the participant's monthly salary as reflected at the time of death. Any reduction of benefits caused by such limitation shall be done on a proportional basis.
40.65(7)(am)
(am) This paragraph applies to benefits based on applications filed on or after May 3, 1988. If a protective occupation participant dies as a result of an injury or a disease for which a benefit is paid or would be payable under
sub. (4), and the participant is survived by a spouse or an unmarried child under the age of 18, a monthly benefit shall be paid as follows:
40.65(7)(am)1.
1. To the surviving spouse until the surviving spouse remarries, if the spouse was married to the participant on the date that the participant was disabled under
sub. (4), 50% of the participant's monthly salary at the time of death, but reduced by any amount payable under
sub. (5) (b) 1. to
6.
40.65(7)(am)2.
2. To a guardian for each of that guardian's wards who is an unmarried surviving child under the age of 18, 10% of the participant's monthly salary at the time of death, payable until the child marries, dies or reaches the age of 18, whichever occurs first. The marital status of the surviving spouse shall have no effect on the payments under this subdivision.
40.65(7)(am)3.
3. The total monthly amount paid under
subds. 1. and
2. may not exceed 70% of the participant's monthly salary at the time of death reduced by any amounts under
sub. (5) (b) 1. to
6. that relate to the participant's work record.
40.65(7)(am)4.
4. Benefits payable under this paragraph shall be increased each January 1 by the salary index determined for the prior year.
40.65(7)(ar)1.1. This paragraph applies to benefits based on applications filed on or after May 12, 1998. If a protective occupation participant, who is covered by the presumption under
s. 891.455, dies as a result of an injury or a disease for which a benefit is paid or would be payable under
sub. (4), and the participant is survived by a spouse or an unmarried child under the age of 18, a monthly benefit shall be paid as follows:
40.65(7)(ar)1.a.
a. To the surviving spouse until the surviving spouse remarries, if the surviving spouse was married to the participant on the date that the participant was disabled under
sub. (4), 70% of the participant's monthly salary at the time of death, but reduced by any amount payable under
sub. (5) (b) 1. to
6.
40.65(7)(ar)1.b.
b. If there is no surviving spouse or the surviving spouse subsequently dies, to a guardian for each of that guardian's wards who is an unmarried surviving child under the age of 18, 10% of the participant's monthly salary at the time of death, payable until the child marries, dies or reaches the age of 18, whichever occurs first.
40.65(7)(ar)2.
2. Benefits payable under this paragraph shall be increased each January 1 by the salary index determined for the prior year.
40.65(7)(b)
(b) Any person entitled to a benefit under both this subsection and
ch. 102 because of the death of the same participant, shall have his or her benefit under this subsection reduced in an amount equal to the death benefit payable under
ch. 102.
40.65(9)
(9) This section is applicable to protective occupation participants who apply for a benefit under this section on or after July 1, 1982. A participant may not apply for a benefit under this section if he or she is receiving a benefit under s.
66.191, 1981 stats., on July 1, 1982.
40.65 Cross-reference
Cross-reference: See s.
891.45 for provision as to presumption of employment-connected disease for certain municipal fire fighters.
40.65 Cross-reference
Cross Reference: See also LIRC and ss.
ETF 52.01 and
DWD 80.31, Wis. adm. code.
40.65 Annotation
The Wisconsin Retirement Board may not reduce duty disability benefits under sub. (5) (b) 3. for worker's compensation benefits that are paid to a participant before the duty disability payments commence, and may do so only for worker's compensation not yet paid. Coutts v. Wisconsin Retirement Board,
209 Wis. 2d 655,
563 N.W.2d 917 (1997).
40.65 Annotation
The Retirement Board is authorized to promulgate administrative rules interpreting sub. (3). Kuester v. Wisconsin Retirement Board, 2004 WI App 10,
269 Wis. 2d 462,
674 N.W.2d 877,
03-0056.
SURVIVOR BENEFITS
40.70
40.70
Life insurance coverage. 40.70(1)
(1) Except as provided in
sub. (11), each eligible employee of an employer shall be insured under the group life insurance plan provided under this subchapter if all of the following apply:
40.70(1)(a)
(a) The employer is a participating employer under the Wisconsin retirement system and was included in the group life insurance program by s.
40.20 (5m), 1979 stats., or the governing body of the employer has adopted a resolution in a form prescribed by the department to make coverage available to its employees or is the state. Coverage may also be extended by rule to employees under other retirement systems if the employer adopts a resolution as specified in this paragraph. A certified copy of the resolution shall be filed with the department and the resolution takes effect on the first day of the 4th month beginning after the date of filing. An employer may provide group life insurance for its employees through separate contracts in addition to, or in lieu of, the group life insurance provided by the department under this subchapter.
40.70(1)(b)
(b) The employee files with the department an application, to be effective on a date fixed by the department, for one or more of the types of coverage established under this subchapter. The group insurance board may provide a different method of enrollment than provided under this subsection.
40.70(1)(c)
(c) The employee pays the employee contribution toward the life insurance premium under
s. 40.05 (6).
40.70(2)
(2) A resolution adopted under
sub. (1) (a) takes effect only if the department determines that at least 50% of the eligible employees of that employer will be covered at the time that the resolution is effective. The department's determination shall be based on the employer's prior year-end report of the number of employees participating in the Wisconsin retirement system or, if the employer was not a participating employer in the prior year, on the number of employees who, on or before the 15th day of the month immediately preceding the effective date of the resolution, have applied for group life insurance coverage under this subchapter. If the department nullifies a resolution based on insufficient participation, the employer may not file another resolution under
sub. (1) (a) during the first 6 months after the date of the previous filing.
40.70(3)
(3) Employers may adopt resolutions providing all the coverages provided under this subchapter or provided by contract or may identify in the resolution only specified coverages that are authorized by contract to be offered separately. Employees may file an application under
sub. (1) (b) for the amount of coverage provided under
s. 40.72 (1) and for any other coverage offered by their employer. The department shall determine the method of administration and the procedure for collection of premiums and employer costs.
40.70(4)(a)(a) The governing body of any employer may do any of the following:
40.70(4)(a)1.
1. Change the coverage that it makes available to its employees under
s. 40.72 (2) or
(3) by adopting an amended resolution and filing a certified copy of the amended resolution with the department.
40.70(4)(a)2.
2. Withdraw from making coverage under this subchapter available to its employees by adopting a withdrawal resolution and filing a certified copy of the withdrawal resolution with the department.
40.70(4)(a)3.
3. Nullify its amended resolution or withdrawal resolution at any time before it becomes effective by adopting a nullifying resolution and filing a certified copy of the nullifying resolution with the department.
