Injured can “stack” permanent partial disability awards for multiple knee surgeries 

By Joe Forward, Legal Writer, State Bar of Wisconsin

June 23, 2011 – Injured workers can “stack” permanent partial disability (PPD) awards where the same work-related injury necessitates two separate surgical procedures, the District IV Wisconsin Court of Appeals recently clarified.

Dave Parent sustained a knee injury in 1997 while working for Madison Gas & Electric (MG&E). Parent had surgery to repair torn cartilage in his knee joint.

The surgeon assessed a PPD rating of five percent, meaning MG&E was required to (and did) pay two-thirds of Parent’s salary for five percent of 425 weeks (21.25 weeks), the full duration of compensation for a loss of the leg at the knee under Wis. Stat. section 102.52(11).

However, in 2007, Parent underwent a complete knee replacement based on the work-related injury he sustained in 1997. For this, the same surgeon assessed a PPD rating of 50 percent (two-thirds compensation for 212.5 weeks, about 4 years).

MG&E argued that it was entitled, under Wisconsin law, to subtract the five percent award Parent received for the first surgery. Thus, it only owed 45 percent (two-thirds compensation for 191.5 weeks, about 3.7 years), MG&E argued.

But Parent argued that the five percent PPD from the first repair surgery must be added to the knee replacement award, so that MG&E owed 55 percent PPD (two-thirds compensation for 233.75 weeks, about 4.5 years).

An administrative law judge and the Labor and Industry Review Commission (LIRC) concluded that Parent was entitled to “stack” the PPD awards, meaning MG&E owed the 55 percent PPD.

However, the Dane County Circuit Court reversed, concluding that stacking PPD awards was unreasonable where the second surgery was a total knee replacement, not a another repair.

Stacking allowed 

In Madison Gas & Electric v. LIRC, 2010AP1849 (June 16, 2011), the appeals court reversed, concluding that “where successive surgeries are necessitated by the same work injury, the minimum PPD ratings for each procedure are cumulative.”

Wis. Admin. Code section DWD 80.32 sets the minimum PPD percentages for injuries, including injuries to the knee. MG&E argued that LIRC’s interpretation of 80.32 to allow stacking of PPD awards for different knee surgeries is inconsistent and unreasonable.

However, the appeals court – in an opinion written by Judge Margaret Vergeront – followed the supreme court’s decision in DaimlerChrysler v. LIRC, 2007 WI 15, 299 Wis. 2d 1, 727 N.W.2d 311. In DaimslerChrysler, the supreme court upheld LIRC’s interpretation of 80.32 to allow for cumulative PPD percentages for “multiple or repeat” surgical procedures to the knee.

The appeals court discounted MG&E’s assertion that LIRC interpreted 80.32 differently in Braun v. Froedtert Malt, Claim Nos. 2001-047953 & 2003-003106 (LIRC Sept. 19, 2007), a case in which LIRC deducted a 7.5 percent PPD knee repair surgery award from a subsequent knee replacement surgery award of 50 percent PPD.

In Braun, LIRC erroneously believed the assessment was attributable to a pre-existing injury, the appeals court noted, and LIRC explained that error in Klettke v. American Innvotech, Claim No. 1989-041491 (LIRC June 30, 2010).

Finally, the appeals court rejected MG&E’s argument that LIRC’s interpretation to allow stacking in this situation is unreasonable because a total knee replacement “completely eliminate[s] the subject of – and the disability that resulted from – the first surgery.”

That argument “is not significantly different than that rejected by the court in DaimslerChrysler, the appeals court explained. “Stated differently, the thrust of MG&E’s argument amounts to a challenge to DaimslerChrysler and, therefore, it must fail.”

The appeals court concluded that it is not unreasonable for LIRC to interpret 80.32 as permitting PPD stacking of knee surgeries necessitated by the same injury, even when the second surgery is a total knee replacement.