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What is duty disability? Do I need a duty disability attorney?

Duty Disability Overview

Duty disability is a wage replacement benefit available to individuals working in protective occupations who have a work-related injury or condition. It is established by section 40.65 of the Wisconsin Statutes and covers employees of both Wisconsin municipalities and those of the State of Wisconsin itself.

Protective occupations include firefighters, police officers, law enforcement personnel, correctional officers, DNR wardens, and some emergency medical service (EMS) providers.

Duty disability will be an option if the following criteria are met:

  1. You worked in a protective occupation when you became disabled.
  2. Your disability is work-related.
  3. Your disability is permanent.
  4. Your disability has caused at least one of the following:
    • Permanent reduction of base pay or position
    • Permanent assignment to light duty
    • Retirement
    • Adversely affected promotion opportunities

Duty Disability Application Process

The duty disability process has two steps:

1. Application
This is handled by the Wisconsin Department of Employee Trust Funds (ETF). To apply you must complete a duty disability application and then obtain two medical reports from doctors. One of the reports must be from a specialist in the area of your disability. Once you have submitted the application and doctors’ reports, your employer will be asked to complete a form indicating whether or not they agree that you qualify for duty disability benefits. If your application is approved, you will start receiving duty disability benefits and will not have to go to a hearing.

2. Hearing Stage
A hearing is required if your duty disability application is denied. Duty disability hearing applications are handled by the Worker’s Compensation Division of the Department of Workforce Development. Once a hearing application is filed, the case is then transferred to the Office of Worker’s Compensation Hearings (part of the Department of Administration).

Do I Need a Duty Disability Attorney?

Getting an attorney for duty disability is not required, but it is important to consider the advantages of being represented.

Worker’s compensation considerations

Because duty disability applies to work-related injuries or conditions, if someone has a duty disability claim, they very likely also have a worker’s compensation claim.

Any worker’s compensation benefits paid after you apply for duty disability will be offset against future duty disability benefits. In other words, if you apply for duty disability and then later get paid worker’s compensation, there is no way the worker’s compensation payments can result in additional money for you because your duty disability payments are reduced to reflect whatever worker’s compensation money you received.

However, worker’s compensation benefits paid before you apply for duty disability cannot be offset against duty disability. Because of this, in some circumstances, it may make sense to hold off on applying for duty disability if the worker’s compensation claim can quickly be resolved for an amount that justifies delaying the duty disability application. It is important to note, however, that because duty disability pays a higher amount than worker’s compensation, it does not always make sense to delay a duty disability application to pursue worker’s compensation. Timing a duty disability application will depend on the facts of each particular case and is something an attorney familiar with both Wisconsin worker’s compensation and duty disability can help you evaluate and explain the pros and cons of each approach.

Obtaining medical evidence

Applying for duty disability can be a relatively straightforward process. However, your application and the supporting doctors’ reports you will need to obtain will be absolutely crucial to your case. One of the advantages of obtaining legal representation from an experienced duty disability attorney is you will have someone familiar with the process, helping you with these critical documents so you can avoid unnecessarily complicating your case. This is important in cases that are likely to be approved (so you do not have to go to a hearing simply because a form was not properly completed). It is also important in cases that will likely go to a hearing. The application and doctors’ reports will serve as the basis for your entire case, so you do not want to be stuck relying on bad reports at your hearing.

An attorney should obtain and review your medical and personnel records to ensure you are approaching your claim in a way that maximizes the likelihood of approval. The court will consider what injury date to use, what causation theory (i.e. a traumatic injury, or an overuse injury), what medical conditions to focus on, and which doctors to ask to complete the reports.

Dealing with your employer and navigating other benefits

If you are applying for duty disability, this likely means your employment in a protective occupation will be ending. Depending on the circumstances, and how your employer intends to treat the end of your employment, there can be serious advantages to having legal representation. For example, you may want assistance negotiating a separation agreement that preserves what should be paid under any collective bargaining agreement, and which also protects claims for duty disability and worker’s compensation benefits.

Additionally, an experienced Wisconsin duty disability attorney should be able to help advise you on what other benefits may be available to you, and which would be advantageous to pursue. Examples might include long-term disability, income continuation, Social Security Disability, or other benefits available through ETF.

Hawks Quindel – Wisconsin Duty Disability Attorneys

The duty disability attorneys at Hawks Quindel are experienced with both duty disability and worker’s compensation, allowing them to advise you on all of your options before pursuing duty disability. If you are interested in obtaining representation, please contact Attorney Matt Robles at 608–257–0040.

Matthew Robles

Associate at Hawks Quindel, S.C.
Matthew Robles is a workers compensation attorney and criminal defense attorney with the Madison office of Hawks Quindel.