Milwaukee Police Association v. City of Milwaukee

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 17, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP301 Cir. Ct. No. 2022CV1965

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

MILWAUKEE POLICE ASSOCIATION AND KURT J. LACINA,

PLAINTIFFS-RESPONDENTS,

V.

CITY OF MILWAUKEE AND CITY OF MILWAUKEE EMPLOYEES RETIREMENT
SYSTEM ANNUITY PENSION BOARD,

DEFENDANTS-APPELLANTS.

APPEAL from an order of the circuit court for Milwaukee County:
PEDRO A. COLÓN, Judge. Affirmed.

Before White, C.J., Donald, and Geenen, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP301

¶1 PER CURIAM. The City of Milwaukee and City of Milwaukee
Employees Retirement System Annuity Pension Board (collectively, the City)
appeal from the order granting summary and declaratory judgment in favor of the
Milwaukee Police Association (MPA) and Kurt J. Lacina. The City argues that
the circuit court misinterpreted the Milwaukee City Charter regarding the offset of
duty disability payments. Upon review, we affirm.

BACKGROUND

¶2 Lacina was hired as a Milwaukee Police Department (MPD) officer
in 1999. On January 21, 2008, Lacina suffered a broken back and neck in a duty-
related police squad accident. After non-surgical treatments did not solve his back
and neck issues, Lacina underwent two spinal surgeries in 2008 and 2009, after an
exhaustive course of nonoperative care and therapy was unsuccessful in alleviating
his lumbar back pain. Lacina was off work for approximately one year, but
returned to limited duty at MPD in 2009. In July 2009, Lacina applied for Duty
Disability Retirement (DDR) benefits for the physical injuries he suffered in the
accident; however, those benefits were denied in July 2010.

¶3 Lacina applied for benefits from the State of Wisconsin Department
of Workforce Development (DWD) Worker’s Compensation Division for his
physical injuries arising out of the accident, resulting in a hearing.1 The
Administrative Law Judge (ALJ) found Lacina had a 20% permanent partial
disability to his cervical and lumbar spine. In the March 2, 2011 order, the ALJ

1
A “finding of permanent partial disability … must be based on a consideration of both
factors loss of bodily function and loss of earning capacity.” Pfister & Vogel Tanning Co. v.
Department of Indus., Lab. & Hum. Rels., 86 Wis. 2d 522, 529, 273 N.W.2d 293 (1979).

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determined Lacina should be compensated $52,400 in Permanent Partial Disability
(PPD) benefits for the loss of function associated with his physical injuries from
the accident. After the City paid a lump sum of $29,441.96, the City was ordered
to pay Lacina $1,135.33 per month, until the remaining $12,156.80 was paid.

¶4 On March 15, 2011, Lacina was involved in another squad accident
resulting in a third spinal surgery. Although Lacina returned to duty, in June
2012, he applied for DDR benefits for mental stress due to the significant
depression, psychological trauma, and cognitive problems stemming from the
medication associated with the failed spinal surgeries.

¶5 The City of Milwaukee Employees’ Retirement System (ERS)
granted Lacina’s mental stress condition DDR claim for a 75% benefit, after
examination and investigation by the medical panel.2 Dr. James Winston, a
psychiatrist, was one of the physicians on the medical panel reviewing his DDR
application. In his 2012 opinion, Dr. Winston discussed Lacina’s history of back
and neck injury treatments and spinal surgeries; his diagnoses of major depression,
anxiety, and narcotic dependence; and different medication and treatment options
that were tried with limited success. Dr. Winston opined that Lacina had “chronic
suicidal ideation from his pain and pain medications,” and that his “clinical
depression [was] related to both [on-duty] accidents.”

¶6 In 2016, upon Lacina’s request, ERS verified that the worker’s
compensation benefits the City provided for Lacina’s physical injuries would not

2
Lacina’s DDR benefits for the mental stress condition were approved in August 2013;
ERS set an effective retirement date in March 2013, and payments began September 2013.

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No. 2023AP301

be offset from his mental stress disability benefits. The offset provision in the
Milwaukee City Charter ordinances that govern ERS provides:

Any amounts which may be paid or payable under the
provisions of any state worker’s compensation, or similar
law, to a member or to the dependents of a member on
account of any disability shall be offset against and
payment in lieu of any benefits payable out of funds
provided by the city under the provisions of this act on
account of the same disability.

MILWAUKEE, WI CITY CHARTER § 36-12 (hereinafter MCC).

¶7 In October 2018, Lacina applied for an enhanced 90% DDR benefit.
After an examination, the medical panel recommended Lacina be granted the
enhanced benefit. Dr. Winston again served on the medical panel. He consulted
with Lacina’s orthopedic surgeon to understand his physical limitations; in letters
to ERS, both doctors opined that Lacina’s chronic pain and major depressive
disorder were closely related and could not be separated.

¶8 ERS then sought review of whether the prior offset determination
was correct. The City Attorney’s Office issued a letter in April 2020 opining that
a MCC § 36-12 offset should apply to Lacina’s previously received worker’s
compensation benefits because Lacina’s mental injuries were inextricably linked
to his duty-related physical injury.

¶9 In June 2020, ERS notified Lacina that it sought a $52,400 offset for
the worker’s compensation payments because his mental stress disabilities were

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based on physical injuries for which he received worker’s compensation PPD
payments. Lacina’s monthly DDR payments were reduced by $61.50.3

¶10 In March 2022, Lacina and the MPA filed the underlying action
seeking declaratory judgment that the City’s ability to offset worker’s
compensation payment was limited to those benefits which are “payable,” as
opposed to having been “paid” previously, and those provided for the same injury,
as opposed to the same date of injury. In October 2022, Lacina moved for
summary and declaratory judgment on these claims. The circuit court granted
Lacina’s motion in January 2023. The City appeals.

DISCUSSION

¶11 The City argues that the circuit court misinterpreted the offset
provision, MCC § 36-12, when it concluded that Lacina’s DDR benefits should
not be offset by the PPD worker’s compensation payments paid to him before his
DDR benefits commenced. The circuit court ordered a declaratory and summary
judgment premised on the court’s interpretation of the offset provision and its
application.

¶12 “A party is entitled to summary judgment if there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of
law.” Olson v. Town of Cottage Grove, 2008 WI 51, ¶34, 309 Wis. 2d 365, 749
N.W.2d 211. We independently review an order granting summary judgment. Id.

3
Lacina had the option to repay the offset in a lump sum; however, the default option
was monthly deduction from his DDR benefit payment.

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No. 2023AP301

A decision to grant or deny declaratory relief under WIS. STAT. § 806.04 (2023-
24)4 falls within the discretion of the circuit court. Olson, 309 Wis. 2d 365, ¶35.

¶13 Here, our inquiry rests on the interpretation of MCC § 36-12. There
are no disputed material facts, and Lacina is entitled to judgment on his claim if
we conclude that the offset for worker’s compensation benefits does not apply.
Alternatively, the City is entitled to judgment if we conclude the offset provision
does apply.

¶14 The interpretation and application of a statute or a municipal
ordinance is a question of law that we review independently. Milwaukee Police
Ass’n v. Hegerty, 2005 WI 28, ¶11, 279 Wis. 2d 150, 693 N.W.2d 738. The
purpose of statutory interpretation is to “determine what the statute means so that
it may be given its full, proper, and intended effect.” Clean Wis., Inc. v. DNR,
2021 WI 71, ¶15, 398 Wis. 2d 386, 961 N.W.2d 346 (quoting State ex rel. Kalal v.
Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110).
“[S]tatutory interpretation begins and is usually complete only after a full
consideration of all relevant intrinsic sources”—that is, the text, context, and
structure of the statute. Service Emps. Int’l Union Healthcare Wis. v. Wisconsin
Emp. Rels. Comm’n, 2025 WI 29, ¶¶10, 12, 416 Wis. 2d 688, 22 N.W.3d 876.

¶15 Lacina and the City differ in their interpretation of MCC § 36-12 in
two ways. First, whether the provision, “[a]ny amounts which may be paid or
payable under the provisions of any state worker’s compensation, or similar law,”
refers only to future worker’s compensation payments, and would not require

4
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2023AP301

offset for worker’s compensation payments made before the effective date of duty
disability retirement. Second, whether the provision, “on account of the same
disability,” means that his DDR benefits granted for a mental stress disability
would be for the “same disability” as the PPD worker’s compensation benefits
granted for his physical injuries.

¶16 We begin with the dispute over the construction of “any amounts
which may be paid or payable.” Lacina argues that it clearly refers to the future
tense and only requires offset for worker’s compensation benefits that have not
been paid as of the effective date of the DDR benefit. The circuit court ruled that
the critical phrase was “may be” and that “[t]he phrase ‘paid or payable,’ standing
alone, would encompass both past and future payments.”

¶17 As we examine the language of the ordinance, we must consider the
words in context—here “may” and “be” are grammatically tied and we analyze
them together. See Kalal, 271 Wis. 2d 633, ¶46. “May” is a modal auxiliary verb,
which is a verb typically used with another verb to express ideas such as
“permission, ability, prediction, possibility, or necessity.” Modal Verb, MERRIAM-
WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/modal
%20verb (last visited February 5, 2026). The combination of auxiliary or helping
verbs can indicate verb tense, passive voice, or form a question. Helping Verb,
MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/
helping%20verb (last visited February 5, 2026); Passive, MERRIAM-WEBSTER
DICTIONARY, https://www.merriam-webster.com/dictionary/passive (last visited
February 5, 2026).

¶18 Here, the clause “any amounts which may be paid or payable” is
stated in the passive voice, as indicated by the use of the modal verb “may,” the

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helping verb “be,” and the past participle form of the verb “pay.” Id.5 A past
participle “typically expresses completed action,” and is “traditionally used in
English in the formation of perfect tenses in the active voice and of all tenses in
the passive voice.” Past participle, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/past%20participle (last visited
February 5, 2026).

¶19 The City argues that the past participle supports that the offset
provision applies to previously paid amounts. However, grammatically, it has not
shown this to be true. Typically, in the passive voice, a modal verb plus “be” plus
the past participle of a verb indicates present or future tense. Verbs, Explained: A
Guide to Tenses and Types, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/grammar/auxiliary-transitive-intransitive-
modal-and-other-types-of-verbs (last visited February 5, 2026). Past tense forms
would be based on past tense conjugations of “be” or “have;” for example: “were
paid,” “were being paid” and “had been paid.” Past tense, MERRIAM-WEBSTER
DICTIONARY, https://www.merriam-webster.com/dictionary/past%20tense (last
visited February 5, 2026). We have not reviewed a grammatical rule proving that
“amounts which may be paid…” includes or requires a past tense construction of
the clause.

¶20 To the extent that the City argues that “may be paid” refers to
worker’s compensation payments that are occurring (or may occur) at the same
time that DDR benefits are being made, we agree that “may be paid” is not

5
“The most common passive structure is be + -ed [past participle] form” of the verb.
Passive Forms, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/us/grammar/british-
grammar/passive-forms (last visited February 5, 2026).

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No. 2023AP301

exclusively future tense. However, the record reflects that the City did not seek to
offset current or ongoing worker’s compensation payments that Lacina was
receiving from his DDR benefit. The record reflects that the worker’s
compensation payments were complete and the total amount awarded was satisfied
before Lacina began any DDR benefit payments.

¶21 We reject the City’s argument that Welter v. City of Milwaukee, 198
Wis. 2d 636, 543 N.W.2d 815 (Ct. App. 1995) resolves this question. In Welter,
the appellants protested “an offset reducing their duty disability benefits by the
amount of benefits they receive” for worker’s compensation benefits. Id. at 639.
The facts described a continuous receipt of benefits and the offset to those
benefits; therefore, the reference that the City adjusted “for the payments received
or expected” merely reflects the ongoing nature of the benefits and the offset. Id.
at 642.

¶22 The language in MCC § 36-12 covers the possibility of an offset,
using “may” to denote an uncertainty about whether the recipient is receiving or
might receive worker’s compensation benefits. When we examine the full text of
the offset provision, we see an additional use of the phrase “paid or payable.” We
generally do not ascribe different meanings to the same word as it appears in a
statute or rule, “unless the context clearly requires such an approach.” General
Castings Corp. v. Winstead, 156 Wis. 2d 752, 759, 457 N.W.2d 557 (Ct. App.
1990). Here, the offset provision’s final sentence states:

Notwithstanding the foregoing, amounts paid or payable as
social security disability benefits shall not be offset against
the benefits payable by the city under the provisions of this
act on account of the same disability to members in the
coordinated plan.

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No. 2023AP301

MCC § 36-12. Thus, because the rule prohibits an offset for Social Security
Disability payments at any time, the rule does not need to address uncertainty or
timing of other payments. Lacina argues that this difference in treatment shows
that the City could have clearly described past benefits received and it did not.
The City argues that this is a distinction without a difference.

¶23 The City asserts that the Pension Board Rules clarify the situation.
“Any amounts paid to a duty disability retiree, under the Worker’s Compensation
Law, prior to the effective date of such duty disability as approved by the Board,
and on account of the same disability, shall be offset against the amounts due from
the ERS…” ANNUITY AND PENSION BOARD OF THE EMPLOYEES’ RETIREMENT
SYSTEM OF THE CITY OF MILWAUKEE RULES AND REGULATION, Rule XVII(E)(3)
(hereinafter, BOARD RULES). Although that rule does support applying the offset
for previously paid worker’s compensation benefits, ERS and its Pension Board
operate under the authority conferred by the City Charter, and it cannot make a
rule that exceeds that authority. See Conway v. Board of Police & Fire Comm’rs
of City of Madison, 2003 WI 53, ¶28, 262 Wis. 2d 1, 662 N.W.2d 335 (“An
administrative agency has only those powers that are expressly conferred or
necessarily implied from the statutory provisions under which it operates.”); MCC
§ 36-15-6 (“Subject to the limitations of this act … the board shall … establish
rules and regulations … in order to carry out the provisions of this act”); BOARD
RULES I(A) (“The Board is governed by the provisions of Chapter 36 of the
Milwaukee City Charter”). Therefore, we conclude the BOARD RULES are not
dispositive. While the City may disagree, we paraphrase our state supreme court
when it addressed the construction of a similar state statute, “the authority rests
with the [City], rather than this court, to change the meaning of the [offset

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No. 2023AP301

provision].” Coutts v. Wisconsin Ret. Bd., 209 Wis. 2d 655, 673, 562 N.W.2d
917 (1997).6 This court can only interpret the ordinances.

¶24 Ultimately, we conclude that the language of the statute requires an
offset to DDR benefits for ongoing, concurrent, and future payments of worker’s
compensation payments. It does not require an offset for worker’s compensation
benefits previously paid in the past.

¶25 We now turn to the second argument—that an offset is required only
for worker’s compensation benefits paid for the “same disability.” See MCC § 36-
12. The City argues that all of Lacina’s health problems arise from the injuries he
suffered in the 2008 squad crash. It asserts that the resulting back and neck
injuries are a single disability; and the medical and surgical treatments did not
restore his functionality, leading to chronic pain, severe depression, cognitive
issues, and narcotic dependance from the pain relief medications prescribed to
him.

¶26 The City argues that the “de facto definition” of disability in MCC
ch. 36 is broad, and therefore, the definition of “same disability” should be
interpreted broadly. It relies upon MCC § 36-05-3-a, which states that DDR

6
Our supreme court analyzed a similar question of statutory offsets to duty disability
benefits for protective occupation participants covered by the public employee trust fund,
governed by WIS. STAT. ch. 40. Coutts v. Wisconsin Ret. Bd., 209 Wis. 2d 655, 663, 562
N.W.2d 917 (1997). Under WIS. STAT. § 40.65(5)(b)3, a participant’s monthly benefit was
reduced by “[a]ny worker’s compensation benefit payable to the participant….” The Coutts court
held that “payable” referred only to future worker’s compensation benefit payments, not those
“paid prior to the commencement of duty disability payments.” Id., 209 Wis. 2d at 673. It barred
offset for benefits that were paid before the duty disability became effective. Id. We reject the
City’s argument that Coutts stands for the proposition that using both paid and payable is
temporally all inclusive to cover existing and future payments. The Coutts court did not address
an all inclusive timeframe, but only distinguished the terms. Id. at 668 (“It is axiomatic that a
sum which is ‘paid’ is no longer ‘payable.’”).

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benefits will be awarded to a member in active service who “shall become
permanently and totally incapacitated for duty as the natural and proximate result
of an injury occurring at some definite time and place while in the actual
performance of duty[.]” The City argues that the duty disability is premised on an
incapacity and a relation to a work-related injury, not on a specific condition or
diagnosis.

¶27 Lacina argues that his DDR benefits were approved for a mental
stress disorder and that his physical injuries are a separate issue, even if both arose
from the first accident. Lacina argues that a major distinguishing factor between
his rejected 2009 DDR application based on physical injuries and his approved
2012 DDR application based on his mental injuries was his second on-duty squad
accident, in March 2011. The City argues that only the 2008 accident was
considered as a basis of his DDR benefits; however, the record reflects that the
ERS-authored letter approving Lacina’s DDR benefits stated that he “applied for
Ordinary and Duty Disability retirement as it relates to injuries/illness that
occurred on January 21, 2008 [the first accident] and March 15, 2011 [the second
accident].”

¶28 Even if we focus on the 2008 accident, which was a basis for both
DDR applications and the PPD benefits, the fact that two different injuries arose
from the same accident is not dispositive to the question of what constitutes the
“same disability.” The City acknowledges, and the record includes, an opinion
from the City Attorney’s Office clarifying the application of offset in an earlier,
unrelated disability application involving another participant. In that matter, a
participant was certified as “totally and permanently disabled as a result of
psychological problems caused by the craniocerebral [brain] injury [he] suffered”
in the accident. However, he also received worker’s compensation benefits for

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No. 2023AP301

disfigurement based on face and body scarring resulting from the burns he
suffered in that same accident. The City Attorney’s Office opined that an offset
would not apply because the two benefits were not paid for the same disability—
one benefit was paid for psychological problems caused by the brain injury, while
the other benefit was paid for the physical and psychological trauma caused by the
burns. As the City points out, the opinion noted that the conclusion would be
different if the DDR benefits had been based on psychological problems resulting
from both the craniocerebral injury and the disfigurement.

¶29 Although the City suggests that the connection between Lacina’s
physical and mental conditions was new information requiring a review of the
offset provision application, this is not clearly established in the record. Instead,
the record reflects that Lacina’s pain and depression were already present and their
correlation established when his DDR benefits for a mental stress disability was
approved. In the 2012 DDR application materials, Dr. Winston’s psychiatric
evaluation discussed Lacina’s severe, chronic pain that incapacitated him, created
a high suicide risk, and exacerbated his depression. In 2019 for the enhanced
benefit application, Dr. Winston opined that “Lacina’s chronic pain and depression
go hand in hand. They can’t be separated in determining his disability. The
chronic pain exacerbates his depression often leading to suicidal ideation. His
depression makes it more difficult to treat his pain as well.” 7 We note that when it
approved Lacina’s DDR benefits in 2012, the City had the records of Lacina’s

7
We acknowledge that Lacina’s orthopedic surgeon also submitted a letter in 2019 in
which he discussed Lacina’s physical injuries as well as chronic pain and how his depression
made “pain management more complex.” The discussion of Lacina’s physical injuries does not
change our analysis.

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No. 2023AP301

2009 DDR application for physical injuries and the PPD worker’s compensation
benefits for his loss of function due to physical injuries.

¶30 We consider the City to contemplate the issue of pain too narrowly.
By definition, pain is both physical and mental. Pain is defined as (1) “a localized
or generalized unpleasant bodily sensation or complex of sensations that causes
mild to severe physical discomfort and emotional distress and typically results
from bodily disorder” and (2) “mental or emotional distress or suffering.” Pain,
MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary
/pain (last visited Dec. 21, 2025). The descriptions of Lacina’s pain in the record
do not exclusively refer to bodily sensation or discomfort, but emotional distress
and pain as an exacerbating and amplifying factor of depression.

¶31 We conclude that Lacina’s mental stress condition was caused by
two work-related injuries, each from an on-duty squad accident, and that condition
resulted in him being permanently and totally incapacitated for duty for MPD.
Although one of the accidents also led to PPD worker’s compensation benefits for
loss of function due to physical back injuries, the shared origin does not establish

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this was the “same disability” for purposes of MCC § 36-12. Therefore, we affirm
the circuit court’s order that the offset does not apply to Lacina’s DDR benefits.8

CONCLUSION

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

8
We also consider, but do not reach, whether equitable estoppel would bar the City from
applying the offset. “The elements of equitable estoppel are: (1) action or non-action, (2) on the
part of one against whom estoppel is asserted, (3) which induces reasonable reliance thereon by
the other, either in action or non-action, and (4) which is to his or her detriment.” Milas v. Labor
Ass’n of Wis., Inc., 214 Wis. 2d 1, 11-12, 571 N.W.2d 656 (1997). The elements of estoppel are
reasonable to consider: the City actively asserted to Lacina that the offset would not apply, an
opinion which induced reasonable reliance by Lacina, and the City is now changing its position.
Applying the offset reduces Lacina’s monthly DDR benefits, which is to his detriment. Although
the City argues ERS was mistaken in 2016 when it assured Lacina that the offset did not apply,
the information about the impact of pain on Lacina’s mental state was known from the time of his
2012 DDR application approval. Therefore, the City appears to be making a policy change in the
guise of a change in facts and circumstances.

15