Injured can “stack” permanent partial disability awards for
multiple knee surgeries
The appeals court concluded that it is not unreasonable to permit
permanent partial disability stacking of knee surgeries necessitated by
the same work-related injury, even when the second surgery is a total
By org jforward wisbar 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
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
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
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.
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 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
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