Section 52.06. Application for duty disability benefits.

 

(1)   In general. An application for duty disability benefits made on or after May 3, 1988, shall be filed with the department, regardless of whether the person filed an application for duty disability benefits with the former department of labor, industry and human relations prior to May 3, 1988.

(2)   Receipt date.

(a) An application for duty disability benefits is initiated on the date the completed form, currently prescribed by the department for that purpose, is received by the department in accord with s. ETF 10.82 .

(b) The receipt date for applications filed with the department prior to January 1, 1995, and for application materials filed prior to May 3, 1988, with the former department of industry, labor and human relations, is the date of the receipt stamp affixed to the document by the respective department, absent clear and convincing proof to the contrary.

(3)   Criteria to be specified. An applicant shall specify which of the following eligibility criteria under s. 40.65 (4) (c) , Stats., are satisfied:

(a) Terminated employment due to disability.

(b) Assigned to light duty by employer or physician due to disability, on other than a temporary basis regardless of whether a light duty position is available.

(c) Pay reduced due to disability, on other than a temporary basis.

(d) Position reduced due to disability, on other than a temporary basis.

(e) Promotion specifically prohibited due to disability by employer rules, ordinances, policies or written agreements, on other than a temporary basis. The rule, ordinance, policy, or agreement shall be written and expressly identified or a copy attached to the application.

(4)   Employment status. A person who was not both a participating employee and a protective occupation participant both at the time he or she became injured or contracted an occupational disease and when he or she became disabled as described by s. 40.65 (4) , Stats., is not eligible for duty disability benefits. For purposes of this subsection only, aggravation of an existing injury or disease is deemed the same as being injured or contracting a disease.

(5)   Application materials; medical reports.

(a) Upon request, the department shall provide a blank copy of the currently approved application form and a blank copy of the currently approved medical report form to a participant. The applicant shall provide 2 medical reports at the applicant's expense. One report must be from a physician who specializes in the area of disability. If the first medical report received by the department is not a qualifying medical report, the department shall advise the applicant that the department will deny the application but that the applicant may nevertheless wish to obtain the second medical report from another physician to include in the applicant's file as supporting evidence if the applicant chooses to file an appeal under s. ETF 52.28 . The department may, by written notice to the applicant, establish a time limit of at least 60 days for submission of the second report.

(b) The department may request and consider any information from the physician who completed a medical report which the department deems necessary to supplement or clarify the physician's opinion, evaluation, diagnosis and prognosis concerning the participant's condition and qualification for duty disability benefits.

(6)   Withdrawal of application.

(a) Voluntary withdrawal. Except as otherwise provided in this paragraph, a participant may withdraw his or her application and, upon withdrawal, the application is void. An applicant may not withdraw his or her application after it has been approved by the department, but may waive future benefits by requesting a waiver from the department.

(b) Failure to submit medical reports. If the applicant fails to submit two qualifying medical reports within one year after the date on which the application was filed, and the department has not already denied the application, the application shall be cancelled.

(7)   Required employer certification.

(a) For each application for duty disability benefits, the department shall obtain from the employer one of the following:

1. A certification that the applicant is disabled as described in s. 40.65 (4) , Stats., indicating the specific criterion under s. 40.65 (4) (c) , Stats., which has been satisfied, and an admission that the injury or disease leading to the disability was duty-related.

2. A statement by the employer that the employer believes the applicant does not qualify for duty disability benefits and the general basis for that belief.

(b) In addition to the requirements of par. (a) , for each application for duty disability benefits pursuant to s. 891.45 or 891.455 , Stats., by a fire fighter, the department shall obtain from the employer a certification including the following:

1. Whether the participant had served a total of 5 years or more as a fire fighter within the meaning of s. ETF 52.02 (1m) . The service need not have been continuous service. The current employer of a fire fighter may verify and certify past qualifying service as a firefighter for the purposes of this subsection.

2. Whether the participant had served at least 10 years as a fire fighter within the meaning of s. ETF 52.02 (1m) . The service need not have been continuous service. The current employer of a fire fighter may verify and certify past qualifying service as a fire fighter for the purposes of this subsection.

3. An attached copy of the qualifying medical examination given prior to the time the participant became a fire fighter for that employer. If no qualifying medical examination is available, the employer must certify that there is no record of a medical examination but one would have been required prior to the participant's hire date.

(bm) In addition to the requirements of par. (a) , for each application for duty disability benefits pursuant to s. 891.453 , Stats., the department shall obtain from the employer a copy of the qualifying medical examination given prior to the time the participant worked for that employer in a position listed in s. 891.453 , Stats. If no qualifying medical examination is available, the employer must certify that there is no record of a medical examination, but that one would have been required prior to the participant's hire date.

(c) The department shall determine whether s. 891.45 , 891.453 , or 891.455 , Stats., applies. The presumptions under ss. 891.45 , 891.453 , and 891.455 , Stats., are rebuttable. The department shall determine whether the applicant is eligible for benefits under s. 40.65 , Stats., on the basis of evidence submitted pursuant to s. 40.65 (2) (b) 2. , Stats.

(8)   Denial and appeal option absent employer response. If the employer fails, upon request of the department, to provide either the certification or the statement required by sub. (7) , the department shall deny the application. The department shall allow the employer at least 30 days to respond to its request and may grant reasonable extensions of time to the employer.

(9)   False information. The department may deny the application of any person who submits false information regarding an application for duty disability benefits.

Cr. Register, September, 1998, No. 513 , eff. 10-1-98; CR 11-040 : am. (9) Register July 2012 No. 679 , eff. 8-1-12; CR 13-029 : am. (3) (b) to (e), (5) (a), (6) (a), (b), (7) (a) 2., (b), cr. (7) (bm), am. (7) (c) Register November 2013 No. 695 , eff. 12-1-13.

Note

The "Duty Disability Application," form ET-5311, and "Duty Disability Medical Report," form ET-5312, are available free upon request from the Department of Employee Trust Funds, P.O. Box 7931, Madison WI 53707. Outdated versions should not be used and may be rejected. Microsoft Windows NT 6.1.7601 Service Pack 1 "Employer Certification – Duty Disability," form ET-5326, will be sent to the employer by the department following receipt of the employee's application for benefits. Outdated versions of the form should not be used and may be rejected. Microsoft Windows NT 6.1.7601 Service Pack 1