Duty Disability Insurance Helps Injured & Ill Workers in Protective Occupations
Wisconsin duty disability benefits are available to firefighters, police, law enforcement, emergency medical service providers, correctional officers, and other state and municipal employees in protective occupations.
Duty disability is an income-replacement benefit program for work-related injuries and conditions, governed by section 40.65 of the Wisconsin Statutes. The benefit amount is typically 75% of your average monthly salary. To qualify, the work-related injury or disease must prevent you from continuing to perform your job, affect your pay or promotion opportunities, or cause permanent assignment to light duty.
For some diseases, such a heart conditions, lung conditions, and some infectious diseases, the law will presume your condition is work related if you meet certain criteria.
When Should I Talk With an Attorney?
Those considering applying for duty disability should strongly consider case evaluation with an attorney experienced with both duty disability and workers’ compensation before they apply for duty disability. Very often, those with duty disability claims also have a workers’ compensation claim. However, because any workers’ compensation paid after filing a duty disability application will reduce duty disability payments, it is crucial to understand the extent of any workers’ compensation claim before applying for duty disability.
Do I Need an Attorney for Duty Disability?
Whether it makes sense to apply for duty disability before or after workers’ compensation can be a complex decision that depends on the facts of each case. The duty disability attorneys at Hawks Quindel are experienced with both duty disability and workers’ compensation and can help identify the benefits available to you, maximize your claims, secure the necessary medical support, and represent you at any hearing.
Who is Eligible?
Duty disability benefits are available to those working in protective occupations, which includes the following state and municipal employees:
- law enforcement
- correctional officers
- DNR wardens
- and some emergency medical service providers
Requirements to Qualify for Duty Disability
To qualify for duty disability, you must meet all of the four requirements below:
- You worked in a protective occupation when you became disabled.
- Your disability is work-related.
- Your disability is permanent.
- Your disability has caused at least one of the following:
- Permanent reduction of base pay or position
- Permanent assignment to light duty
- Adversely affected promotion opportunities
In certain circumstances, special presumptive disability rules apply.
1. Heart & Lung Conditions
This presumption applies only to firefighters. If a firefighter’s disability is caused by heart or respiratory impairment or disease, it is presumed that the impairment or disease is work related if the following conditions are met:
- The firefighter worked for at least 5 years as a firefighter
- The firefighter submitted to a qualifying medical examination before starting work as a firefighter and showed no evidence of the disease
County, state, and municipal firefighters may all qualify. However, for municipal firefighters to receive the presumption one additional criteria must be met:
- The municipal firefighter’s duties must have taken up at least at least 2/3 of their working hours during the 5-year qualifying period
This presumption also applies only to firefighters. A firefighter’s disability that is caused by cancer will be presumed to be work related if the following conditions are met:
- They worked at least 10 years total as a firefighter;
- During the 10-year qualifying period, firefighter duties made up at least 2/3 of their working hours;
- The firefighter must have submitted to a qualifying medical examination before starting work as a firefighter and shown no evidence of cancer.
The presumption applies only to cancers affecting the following areas of the body:
- Central nervous system
- Lymphatic system
- Digestive system
- Hematological system
- Urinary system
- Oral system
- Reproductive system
However, the presumption will not apply for cancers caused by smoking or tobacco products for municipal firefighters who have used a tobacco product after January 1, 2001.
3. Infectious Diseases
This presumption is available to firefighters, law enforcement officers, correctional officers, and emergency medical service providers.
If you are disabled because of certain infectious diseases, it will be presumed that you are disabled because of your employment. The following infectious diseases are subject to this presumption:
- HIV & AIDS
- Hepatitis A, B, C, & D
- Meningococcal meningitis
Additionally, the employee must have submitted to a qualifying medical examination before starting work as a firefighter, law enforcement officer, correctional officer, or emergency medical service provider, and shown no evidence of an infectious disease.
How to Apply for Duty Disability
1. Contact ETF for a duty disability packet
To start the process of applying for duty disability, you must file an application with ETF. To obtain a duty disability packet with an application, contact ETF at 877-553-5020 and request one over the phone From there, ETF will mail the packet to your home address.
2. File a duty disability application
You will need to complete and file a duty disability application, which is formally known as an ET-5311 form. Either you or an attorney can file the application before you have your physician reports completed.
3. Obtain & file two physician reports
To qualify for duty disability benefits, two doctors must complete a physician certification form, known as an ET-5312M, stating that your condition is work related and meets at least one of the qualifying criteria for duty disability. One of the reports must come from a specialist in the area of disability, and the doctors must complete the reports within six months of your last appointment with them. Once completed, both doctors must send their certification forms directly to ETF.
As noted above, you do not have to file the physician reports with your application. You have one year after filing your duty disability application for ETF to receive both physician reports. If ETF does not receive the physician reports within a year of the application, your application will be dismissed and you will need to start the process over.
When a Claim for Benefits Begins
The first day you are eligible to be paid duty disability is known as the “effective date.” The effective date is the later of either of the two following dates:
- The date the ETF receives your duty disability application
- The date of your “qualifying event” (i.e. the date your disability causes you to retire; reduces pay or position; results in permanent assignment to light duty; or affects your promotional opportunities)
You will not be paid benefits until your application has been approved. Any benefits that you are owed from when your application was pending will be paid to you in a lump sum as a back benefit if your application is approved.
Duty disability benefits are calculated by multiplying your monthly salary by a set percentage depending on whether you are a state or local government employee. Eligble state employees receive 80% of their monthly salary as of the qualifying date. Local government employees generally receive 75% of their monthly salary. An additional 5% increase may be added if the employee qualifies for disability benefits from the WRS or Social Security Administration.
Duty disability benefits are not taxed, unless you are working light duty for the same employer. The benefit is adjusted annually each January 1st based on the Social Security salary index.
Benefit Offsets & Required Disclosures
ETF considers itself the “payer of last resort.” Because of this they will reduce your duty disability benefit based on most other sources of income, whether that income is from work or other benefit programs. Income that will be offset from your duty disability benefits include:
- Social Security benefits;
- Unemployment compensation;
- Worker’s compensation;
- Wisconsin Retirement System benefits; and
- Earnings from work, including self-employment.
Earnings are offset based on a three-tiered system.
- The amount of the total earnings less than 40% of your salary offsets duty disability by 1/3;
- The amount of the total earnings that are from 40% to 80% of your monthly salary offsets duty disability by half;
- The amount of the total earnings that is above 80% of your monthly salary offsets duty disability by 2/3.
You are required to notify ETF when you are approved for any of the benefits listed above, or any time you receive earnings for work performed within 30 days of receiving any income.
Every year, you will have to submit an annual disclosure to ETF with financial information. This includes completing and submitting an Annual Income Statement and submitting a copy of your current federal and state tax returns.
Special Disability Benefit
For individuals who are in protective occupations and are age 50 to 54, a special disability annuity may also be available in addition to the duty disability benefit. The criteria for eligibility are:
- You worked in a protective occupation;
- You are at least age 50, but under age 55;
- You have at least 15 years of creditable service in the Wisconsin Retirement System;
- Your condition is not considered total and permanent; and
- You can no longer efficiently and safely perform the duties of your protective occupation position.
You will be required to submit two qualifying medical reports and an employer disability certification to the Wisconsin Retirement System before the special disability benefit can be approved.
If a protective occupation employee dies as a result of an injury or disease for which duty disability would be payable, their surviving spouse and any children under age 18 may be eligible for duty disability death benefits. In addition, domestic partners may be eligible for death benefits.
For state employees, surviving spouses receive one-third of the employee’s monthly salary as reflected at the time of death. For local government employees, the surviving spouse receives 50% of the employee’s monthly salary at the time of death, reduced by other income sources such as Social Security or other WRS benefits. For firefighters who qualify under the cancer presumption described above, the surviving spouse received 70% of the employee’s monthly salary, reduced by any Social Security, WRS benefits, etc.
For work-related or line-of-duty duty deaths, there are other potential benefits potentially available to surviving spouses, children, or parents. These include the federal Public Safety Officers Benefit, Wisconsin worker’s compensation, life insurance, and money paid into the Wisconsin Retirement System.
Appealing Benefit Calculation
Appealing a Denial of Duty Disability Benefits
If your duty disability application is denied, you or your employer can contest the denial by filing written notice of appeal with the Department of Workforce Development, Worker’s Compensation Division. The duty disability appeal process is subject to the same procedural rules as a worker’s compensation appeal, including a full hearing before an administrative law judge.
Appealing Benefit Calculation
If you disagree with a decision about your duty disability benefit amount, termination of benefits, benefit offsets, or a determination of your qualifying date, you have the right to appeal.
ETF suggests first contacting the employee who decided your claim. Regardless of contacting ETF, your appeal must be received by the Wisconsin Retirement Board within 90 days of the determination in question.
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