DUTY DISABILITY FIREFIGHTER SURVIVOR BENEFITS KNOWING ABOUT HAWKS QUINDEL, S.C. Daniel R. Schoshinski Summer H. Murshid

Transcription

1 KNOWING ABOUT DUTY DISABILITY & FIREFIGHTER SURVIVOR BENEFITS Daniel R. Schoshinski Summer H. Murshid HAWKS QUINDEL, S.C. Milwaukee: (414) or (800) Madison: (608) or (800) [union bug]

2 LET US INTRODUCE OURSELVES We are the law firm of HAWKS QUINDEL, S.C. We provide services in the areas of: Labor and Employment Law Worker s Compensation Law Family Law Social Security Disability Law Civil Rights Short & Long-Term Disability Our offices are located in: Milwaukee 222 E. Erie Street, Suite 210 Milwaukee, WI Call Toll-Free: Madison 222 W. Washington Avenue, Suite 450 Madison, WI Call Toll-Free: Visit our website at: Do not hesitate to contact us with any legal question.

3 CONTENTS Introduction... 3 Quick Summary... 3 Duty Disability Benefits... 4 What is Duty Disability?... 4 Eligibility... 4 Procedural Requirements... 5 How to Apply... 6 Effective Date; Qualifying Date; Qualifying Event... 6 Calculation of Benefits... 6 Permanent and Total Disability... 7 Benefit Offsets... 7 Annual Required Disclosure to the ETF... 9 Heart & Lung Presumption... 9 Cancer Presumption Infectious Disease Presumption Appealing a Denied Duty Disability Claim Appealing a Determination of Duty Disability Benefits.. 12 Duty Disability Death Benefits Special Disability Benefits

4 Federal Disability Benefits Firefighter Survivor Benefits (FEDERAL) Public Safety Officers Benefits Act (PSOB) Hometown Heroes Survivor Benefits Act When PSOB Benefits are Not Payable Order of Beneficiaries Filing a Death or Disability Claim Public Safety Officer s Educational Assistance (PSOEA). 21 Firefighter Survivor Benefits (WISCONSIN) Health Insurance Benefit Worker s Compensation Death Benefit Special One-Time Death Benefit Funeral Benefit Retirement / Pension Plan Education Benefit Spouse / Child

5 INTRODUCTION As a firefighter, you and possibly your beneficiaries, are entitled to state and federal benefit programs, many of which can be administered concurrently. The goal of this booklet is to provide a readily available overview of applicable disability and survivor benefits, in the event this information is ever needed. QUICK SUMMARY Duty Disability Benefits If you are injured in the line of duty and become disabled, you may be eligible for duty disability benefits. Duty disability is a monthly payment designed to replace a portion of your monthly salary. In Wisconsin, the State Employee Trust Fund administers this benefit program. At the federal level, the Public Safety Officer s Benefits Act provides a one time benefit to officers who become permanently and totally disabled. QUICK SUMMARY Survivor Benefits Survivors of fallen firefighters may also be eligible for benefits. Federal programs provide a one time death benefit for survivors of firefighters and other public safety officers, whose deaths were caused by an injury sustained in the line of duty or certain eligible strokes and heart attacks. Educational assistance is also available to children and spouses of firefighters under federal law. Wisconsin Worker s Compensation provides death benefits to survivors of firefighters, and Wisconsin is one of 29 states that provides a one time death benefit, in addition to Worker s Compensation awards, to the survivors of fallen firefighters. Finally, Wisconsin provides up to $10,000 for burial expenses. 3

6 DUTY DISABILITY BENEFITS Wisconsin s statutory duty disability program provides lifetime disability benefits similar to Worker s Compensation, administered by the Employee Trust Funds (ETF). What is a Duty Disability Benefit? Duty disability is an income replacement program which provides that your total income from all sources, including other disability payments, will equal a percentage of your monthly salary as of the qualifying date. Benefits are available to protective occupation participants who have been injured while performing their duties or who contracted a disease due to their occupation and are unable to continue employment. To qualify for duty disability benefits, you must meet the criteria listed below. What is a protective occupation participant? Any participant whose principal duties involve active law enforcement or active fire suppression or prevention, provided the duties require frequent exposure to a high degree of danger or peril and also require a high degree of physical conditioning. You are eligible for duty disability if: You were injured in the line of duty or contracted a disease due to your occupation; and 4

7 Line of Duty includes fighting fires and other less dangerous aspects of the job including eating dinner in the firehouse. The disability is likely to be permanent; and The type of disabilities that may entitle you to duty disability range from less severe injuries to the most catastrophic. One of the following scenarios results: 1. the disability causes you to retire from your job; 2. your pay or position is reduced, you are assigned to permanent light duty; or 3. promotional opportunities within the service are adversely affected if promotion is specifically prohibited because of the disability. Procedural Requirements for Duty Disability: You need medical certification from two physicians that the disability is likely to be permanent. You may select one physician who is licensed and practices in Wisconsin. The Employee Trust Fund (ETF) selects the second physician. You must provide a statement from your employer that the injury/disease relating to the disability was duty related; i.e. the disability must be employer certified. 5

8 How to apply for duty disability: You must file an application with the ETF; the ETF will then determine whether you are eligible for benefits. To obtain a duty disability packet, call the ETF at (toll free) or or visit the ETF website at Important terms relating to a duty disability benefit: The first day that your benefits are payable is the effective date of your duty disability. Your effective date is either the date your application is received by the ETF OR your qualifying date (whichever is later). The first day you qualify for duty disability is your qualifying date. Your qualifying date is either the date you filed your application or the first qualifying event (whichever is later). The qualifying event is the event which qualifies you for retirement, reduction in pay or position, assignment of light duty or affects promotional opportunities. Calculation of Benefits: Your duty disability benefit is based on your GROSS MONTHLY SALARY. Generally, the duty disability monthly benefit is approximately 75% of your monthly salary, although the monthly salary benefit can range from 50% to 75% depending on your years of service. 6

9 The duty disability benefit is 80% of your monthly salary if you are permanently and totally disabled. What does it mean to be permanently and totally disabled? Permanently and totally disabled means you are unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or to be of long continued and indefinite duration. In other words, permanently and totally disabled means you are permanently unable to do any type of work. Is overtime included in the calculation of monthly salary? Overtime may be included in the gross monthly salary if the overtime was worked on a regular and dependable basis. Benefit Offsets: The Department of Employee Trust Funds is the payor of last resort. The ETF will offset your duty disability payment if you are receiving other benefit payments. In other words, other benefit payments will be calculated, and that amount will be subtracted from your duty disability benefit. Benefits that offset duty disability by an ETF established formula include: 7

10 Worker s Compensation Wisconsin Retirement System Social Security Benefits Unemployment Compensation Post Benefit Earnings (self employer or other employer) There is a three-tiered offset plan for post benefit earnings: 1. For the amount of the total earnings that is less than 40% of your monthly salary, the duty disability is offset by 1/3. 2. For the amount of the total earnings that is from 40% to 80% of your monthly salary, the duty disability is offset by 1/2. 3. For the amount of the total earnings that is above 80% of your monthly salary, the duty disability is offset by 2/3. Required Disclosures: You are required to notify ETF when you are approved for any of the above benefits or any time you receive earnings for work performed within 30 days of the receipt of any income. Are duty disability benefits taxable? Duty disability benefits are NON-TAXABLE unless you are working at reduced light duty pay for the same employer. 8

11 Does the amount of a duty disability benefit ever change? Benefits are increased each January 1 st for cost of living. They are changed based on the Social Security salary index. Annual Required Disclosures: Financial information must be submitted to ETF on an annual basis. You must complete an Annual Income Statement and return it to ETF by March 15 th of each year. You must also submit a copy of your current federal and state tax returns each July. Presumptions of Work Related Diseases: Certain types of diseases and deaths are presumed to be related to a firefighter s job because of the nature and danger of the work. In all cases, the firefighter must have submitted to a medical examination prior to starting work and had no evidence of the disease. v HEART AND LUNG If the death or disability of a firefighter is caused by heart or respiratory impairment or disease, there is a presumption that the disease or impairment was caused by the employment. CONDITIONS: The employee must have been a municipal firefighter (at least 2/3 of employee s working hours) who worked for at least 5 years as a firefighter. 9

12 v CANCER If the death or disability of a firefighter is caused by cancer, there is a presumption that the cancer was caused by the employment. CONDITIONS: The employee must have been a municipal firefighter (at least 2/3 of employees working hours) who worked for at least 10 years as a firefighter. The presumption ONLY applies to the cancers affecting: Skin Breasts Central nervous system Lymphatic system Digestive system Hematological system Urinary system Oral system Reproductive system LIMITATION: The presumption for cancers caused by smoking or tobacco product shall not apply to any municipal firefighter who uses a tobacco product after January 1,

13 v INFECTIOUS DISEASE If the death or disability of a firefighter is caused by certain infectious diseases, there is a presumption that the disease was caused by the employment. CONDITIONS: There is no minimum term of employment to qualify for the presumption. The term infectious disease refers to: Human immunodeficiency virus Acquired immunodeficiency syndrome Tuberculosis Hepatitis A, B, C, D Diphtheria Meningococcal meningitis Methicillin resistant Staphylococcus aureus Severe acute respiratory syndrome Appealing the Denial of a Duty Disability Claim: If your duty disability application is denied, you or your employer can contest the determination by filing a written notice of appeal with the Department of Workforce Development, Worker s Compensation Division. 11

14 Appealing the Determination of a Duty Disability Benefit: If you believe that the calculation of your duty disability benefits, termination of your duty disability benefits, your benefit offsets or your qualifying date is based upon a factual error, you have a right to appeal to the Wisconsin Retirement Board. You also have a right to appeal if you believe that ETF has misinterpreted the applicable law. The written appeal request must be received by the Board within 90 days of the determination. DUTY DISABILITY DEATH BENEFITS Duty disability benefits may be payable to a firefighter s family upon the firefighter s death if the death resulted from the injury or disease for which the benefit was paid or would be payable. The amount of the benefit depends upon the applicable duty disability law in effect at the time the application for duty disability was approved. Potential beneficiaries should contact ETF as soon as possible to determine whether they are eligible for death benefits. 12

15 SPECIAL DISABILITY BENEFITS What is a special disability benefit? In addition to duty disability benefits, protective occupation participants may also be eligible for a special disability annuity from the Wisconsin Retirement System (WRS). This payment is in addition to monthly duty disability benefits. Who is eligible for a special disability benefit? Protective occupation employees whose condition is not considered total and permanent. What are the criteria for eligibility? You worked in a protective occupation; You can no longer efficiently and safely perform the duties of your position; and You have at least 15 years of creditable service under the Wisconsin Retirement System and are at least age 50 but under age 55. If you meet the requirements for special disability, you must submit two qualifying medical reports and an employer disability certification to the WRS before the disability can be approved. 13

16 FEDERAL DISABILITY BENEFITS PUBLIC SAFETY OFFICERS DISABILITY BENEFITS Public Safety Officers Benefits Act Federal legislation provides for a one time benefit to public safety officers who become permanently and totally disabled as a direct result of a catastrophic injury sustained in the line of duty. The Bureau of Justice Assistance distributes this benefit. What does it mean to be permanently and totally disabled under federal law? Permanently Disabled: An individual is permanently disabled only if there is a degree of medical certainty that the disabling condition 1. Will progressively deteriorate or remain constant, over one s expected lifetime; or 2. Otherwise has reached maximum medical improvement. Totally disabled: An individual is totally disabled only if there is a degree of medical certainty that one s residual functional capacity is such that one cannot perform any gainful work. To be eligible for this benefit, the officer must be permanently prevented from performing any gainful work. Gainful Work means full-or part-time activity that is actually or commonly compensated. 14

17 PSOB benefits are supplemental; they CAN NOT be used as an offset against Worker s Compensation or Duty Disability benefits. FIREFIGHTER SURVIVOR BENEFITS The following information is provided for survivors of firefighters who may be eligible for benefits under both Wisconsin and Federal law. FEDERAL BENEFITS PUBLIC SAFETY OFFICERS DEATH BENEFITS v Public Safety Officers Benefits Act [42 USC 3796(a)] One Time Death Benefit: The PSOB Program provides a one time death benefit of $311,810 as of October 1, The amount of the benefit is adjusted each year to reflect increases in the Consumer Price Index. In addition, the government has increased the benefit level at various times. For instance, after the September 11 th attacks, the government increased the benefit level from $154,199 to $250,000. The Bureau of Justice Assistance distributes this benefit. When Does a Firefighter s Death Qualify Survivors for Benefits? The PSOB Program provides death benefits to the eligible survivors of public safety officers whose deaths are the 15

18 direct and proximate result of a personal injury sustained in the line of duty or certain eligible heart attacks or strokes. Direct and Proximate Result The traumatic physical injury must be a substantial factor in the officer s death. Personal Injury Personal injury means any traumatic injury, as well as diseases which are caused by or result from such an injury, but not occupational diseases. Traumatic Injury means a physical injury and includes stress or strain. A widow or widower cannot receive benefits following an officer s suicide, which was caused by depression and post-traumatic stress disorder. The conditions do not constitute personal injury within the meaning of the PSOB Act. Eligible Strokes and Heart Attacks see Hometown Heroes Act, page 17 of this booklet. Line of Duty Line of duty includes performance of any action by an officer, whose primary function is suppression of fires, obligated or authorized by rule, regulations, condition of employment or service, or law to perform such actions; including those social, ceremonial, or athletic functions to 16

19 which the officer is assigned or for which the officer is compensated by the public agency he serves; and Any action which an officially recognized or designated public employee member of a rescue squad or ambulance crew is obligated or authorized by rule, regulation, condition of employment or service, or law to perform. The claimant has the burden of showing a traumatic injury for entitlement to survivor benefits. However, the Bureau must resolve any reasonable doubt arising from the circumstances of the officer s death or permanent or total disability in favor of the payment of such benefits. Hometown Heroes Survivor Benefits Act of 2003 Providing Benefits to Survivors of Officers who Die of Heart Attacks or Stroke. This legislation extends PSOB benefits to survivors of officers who die of a heart attack or stroke within 24 hours of performing on duty nonroutine stressful or strenuous physical activity. The Act also covers deaths from heart attacks or strokes that occur as a result of the officer s participating in training involving nonroutine stressful or strenuous activity. Nonroutine stressful or strenuous physical activity excludes actions of clerical, administrative or nonmanual nature. 17

20 Examples of covered activities include: performing a search and rescue mission; performing or assisting with emergency medical treatment; performing or assisting with fire suppression; involvement in a situation that requires either a high speed response or pursuit on foot or in a vehicle; participation in hazardous material response. Examples of uncovered, routine activities include: sitting at a desk; typing on a computer; talking on the telephone; reading or writing paperwork or other literature; watching a police or corrections facility monitor of cells or grounds; teaching a class; cleaning or organizing an emergency response vehicle; signing a prisoner in or out; directing traffic or participating in a local parade. The Hometown Heroes Act creates a presumption that a firefighter s heart attack or stroke is the direct result of the nonroutine stressful or strenuous physical activity performed in the line of duty. The presumption can only be overcome by competent medical evidence to the contrary, showing that the heart attack or stroke was not directly related to the fallen firefighter s actions in the line of duty. 18

21 PSOB Program Benefits Are Not Payable When: Death or permanent disability was caused by the officer s intentional misconduct. Death or permanent disability was caused by the officer s intent to bring about his or her death or disability. The officer was voluntarily intoxicated at the time of the officer s death or catastrophic personal injury. The officer performed his or her duties in a grossly negligent manner. Order of Beneficiaries: If there are no surviving children, then 100% of benefits go to the surviving spouse. If married, the spouse is still entitled to the benefits, even if living apart from the officer at the time of the officer s death for any reason. If there is a surviving child or children AND a surviving spouse, then one-half (1/2) of the benefits goes to the surviving child or children in equal shares and one-half (1/2) goes to the surviving spouse. Eligible child includes any natural, illegitimate, adopted or posthumous child or stepchild of a deceased public safety officer who, at the time of the public safety officer s death is: 19

22 18 or younger; Between 18 and 23 and a student or; Over 18 and incapable of self-support because of a physical or mental disability. If there is no surviving spouse, then the benefits go to the child or children in equal shares. If there are no surviving spouses or surviving children, then the benefits go to the individual designated by such officer as beneficiary under the officer s most recently executed life insurance policy, provided that such an individual survived the officer. Beneficiaries can include domestic partners and parents. If none of the above survives the officer, then 100% of the benefits go to the parent(s) of the officer in equal shares. Filing A Death Or Disability Claim Under The PSOB Death or Disability Claims may now be submitted online at: For a detailed explanation of applying for PSOB death benefits, visit: For a detailed explanation of applying for PSOB disability benefits, visit: 20

23 v For more information about the Public Safety Officer s Benefits Program or to obtain forms, contact: Benefits Office Bureau of Justice Assistance 810 Seventh Street NW. Washington, DC Toll free: SIGNL13 ( ) Fax: AskPSOB@usdoj.gov Public Safety Officer s Educational Assistance (PSOEA) Providing financial assistance for educational expenses of the child(ren) or spouse of a deceased firefighter. Financial assistance is available for eligible individuals attending education, professional or vocational higher education institutions. Education expenses include tuition, room and board, books, supplies, fees and transportation expenses. As of October 1, 2009, the maximum award for a full time student is $ per month of class attendance. Award amounts are proportionally less for part time students. 21

24 Educational assistance under this program is reduced by the amount of other governmental assistance that a student is eligible to receive from Federal, State or other local government sources. The maximum duration for the receipt of benefits is 45 months (five years) of full time education or a proportional period of time for a part time program. The spouse of a public safety officer is entitled to receive PSOEA funds for educational expenses at any time during his or her lifetime. The child(ren) of a deceased or disabled officer is entitled to receive benefits for education expenses that occur prior to his or her 27 th birthday. Assistance may be awarded after a child s 27 th birthday in the event of extraordinary circumstances such as the death of a relative, personal injury or illness, military service or financial hardship. THE FEDERAL GOVERNMENT DOES NOT MAKE A DISTINCTION BETWEEN PART, FULL TIME OR VOLUNTEER FIREFIGHTERS WHEN AWARDING FEDERAL PUBLIC SAFETY OFFICER BENEFITS. 22

25 WISCONSIN BENEFITS Health Insurance Benefit If a city, village or town (municipality) pays the health insurance premiums for its employees who are firefighters, the municipality must continue to pay those premiums for the surviving spouse and dependent children of a firefighter who dies, or has died, in the line of duty. The requirement also requires premium payments be made for dependent children who are full time or part time students in an accredited college or university until the end of the calendar year in which the child turns 27. The requirement does not apply to a surviving spouse who remarries or reaches age 65, nor does it apply to a dependent child who turns 18 but is not a full time high school student. This law first applies retroactively to a firefighter who died in the line of duty before the effective date of the law, May 26, Worker s Compensation Death Benefit If a firefighter s death proximately results from an accidental injury, then the firefighter s spouse and children are eligible for death benefits under Wisconsin s Worker s Compensation Law. Similarly, if a firefighter is permanently and totally disabled and later dies, regardless of the cause of death, the spouse and children are eligible for Worker s Compensation death benefits. 23

26 Spousal Benefit The awarded death benefit equals 4 times the firefighter s average annual earnings, but cannot exceed $244, [amount adjusted yearly]. If disability indemnity benefits were paid from the date of injury until the firefighter s death, then there may be a corresponding reduction in the death benefit. Children s Benefit Once the spousal death benefit ends, the children of the deceased firefighter are eligible for a death benefit. The rate for each child is 10% of the surviving spouse s weekly death benefit. Children may receive the benefit until they turn 18. If the child is physically or mentally disabled, such payments may be continued beyond the 18 th birthday, but payments may not continue in excess of a total of 15 years. Special One-Time Death Benefit Wisconsin is one of 29 states that provide a one time death benefit to survivors of fallen firefighters. This benefit is in addition to the primary worker s compensation death benefit available to all employees. The special death benefit applies to firefighters who die after sustain[ing] an accidental injury while performing services incidental to that employment so that a death benefit is payable under the Worker s Compensation Law. 24

27 Amount of the Special Death Benefit A sum equal to 75% of the primary death benefit, but not less than $50,000. If there are more than four persons who are dependent on the firefighter, then an additional benefit of $2,000 shall be paid to each dependent in excess of four. Funeral Benefit Up to $10,000 for burial expenses. Retirement/Pension Plan A death benefit is available for participants in the Wisconsin Retirement System. The amount available depends on whether the death occurs before or after retirement. Visit for additional information. Education Benefit Children Benefits are available to any resident undergraduate student who is enrolled in a bachelor s degree, associate degree, or technical diploma program at a state institution. The line of death duty must have occurred before the child turned 21. Stepchildren are eligible for the benefit. Education Benefit Spouse Benefits are available to any resident undergraduate student who is enrolled in a bachelor s degree, associate degree, or technical diploma program at a state institution. There is no age limit for spousal education benefits. 25

28 KNOWING ABOUT DUTY DISABILITY & FIREFIGHTER SURVIVOR BENEFITS Daniel R. Schoshinski Summer H. Murshid HAWKS QUINDEL, S.C. Milwaukee: (414) or (800) Madison: (608) or (800) , Daniel R. Schoshinski & Summer H. Murshid. All rights reserved. The information in this booklet is provided for general information only and does not constitute legal advice. For legal advice about a specific concern, consult with an attorney.