40.65 Duty disability and death benefits; protective occupation participants.

1,091 words·~5 min read·/wi/chapter-40/40-65-5

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(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.

1. This paragraph applies to participants who first apply for benefits under this section on or after May 3, 1988.

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.

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.

4. In hearing an appeal under subd. 3. , the department of workforce development shall follow the procedures under ss. 102.16 to 102.26 .

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).

(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 may require a participant to authorize the board to obtain a 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, who refuses to authorize the board to obtain a copy of his or her most recent state or federal income tax return, or who submits false information to the board.

(4)A protective occupation participant is entitled to a duty disability benefit as provided in this section if:

(a)The employee is injured while performing his or her duty or contracts a disease due to his or her occupation;

(b)The disability is likely to be permanent; and

1. The disability causes the employee to retire from his or her job;

2. The employee’s pay or position is reduced or he or she is assigned to light duty; or

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.

(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.

(4r)A protective occupation participant who is an emergency medical services practitioner, as defined in s. 256.01

(5), 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

(d)and

(dm).

(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.

(4w)A county jailer who becomes a protective occupation participant on or after January 1, 2024, is not entitled to a duty disability benefit under this section for an injury or disease occurring before January 1, 2024.

(a)The monthly benefit payable to participants who qualify for benefits under s. 40.63 or disability benefits under OASDHI is 80 percent of the participant’s monthly salary adjusted under par.

(b)and sub.

(6), except that the 80 percent shall be reduced by 0.5 percent 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 percent 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 percent of the participant’s monthly salary adjusted under par.

(b)and sub.

(6), except that the 75 percent shall be reduced by 0.5 percent 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.

(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 percent of the monthly benefit under this section until the amount payable under subd. 3. is determined.