Disability pay denied to late firefighter’s spouse

Court rules man waited too long to marry woman

A man who waited too long to marry his longtime live-in girlfriend cannot collect her duty-disability benefits earned as a firefighter, the Court of Appeals ruled.

The decision turned on just when Denise Waterman qualified for duty disability — the day after her last day of work, or the day she died of cancer 21⁄2 months later.

She married Gregory Pozarski, her significant other since 2001, in the interim.

But that was too late, according to the court, which upheld a ruling by the Wisconsin Retirement Board that Waterman qualified for duty disability on the day after her last work day, and since she wasn’t married to Pozarski then, he cannot collect her benefits as her surviving spouse.

The District 4 court acknowledged ambiguity in the administrative code about when an employee who does not return to work is considered to have a permanently reduced position.

But the court said it must defer to the retirement board’s interpretation of its own rules since the interpretation was not unreasonable and “promotes the uniform and certain administration of the duty disability benefits program.”

Waterman, 48, spent 16 years on the Eau Claire Fire Department. After working her shift on Feb. 14, 2014, she did not return to her job. About two weeks later, she was diagnosed with colon cancer. Three weeks after that, she and Pozarski married. A month later, Waterman died.

Under state law, a firefighter’s cancer is presumed to be caused by her employment if she had worked at least 10 years and showed no evidence of cancer before beginning such work.

A Department of Employee Trust Funds staffer first rejected Pozarski’s application for surviving spouse bene-

fits, saying that once Waterman stopped coming to work, her position had been reduced, triggering her qualification for duty disability.

Pozarski argued that since Waterman kept getting paid, was trading shifts with colleagues, was never formally reassigned to light duty and never ordered by a doctor or the city not to work, her position was actually never “reduced” in the way required to make her eligible for duty disability.

Rather, he says, Waterman only qualified for duty disability when she died.

But the court called that a self-defeating argument. Followed to its conclusion, it found, Waterman would have died without ever qualifying for duty disability, and therefore Pozarski couldn’t collect it as her surviving spouse.