In Part 1, we discussed how to determine the PPD (Permanent Partial Disability) value for certain body parts and surgical procedures. In this article, we continue the discussion on applicable PPD values for cumulative or multiple surgeries.
What about multiple surgeries?
“Redo” or cumulative surgeries can be problematic, but recent court decisions clarified the issue.
For background information, the Wisconsin Supreme Court (DaimlerChrysler v. LIRC, 2007 WI 15, 299 Wis. 2d 1, 727 N.W.2d 311 (2007))held that any additional invasive surgery resulting from the same work injury carries an additional, additive PPD rating under section 80.32. In effect, the minimum percentages of disability are “stacked” on each other, based on each performed procedure listed in the Code section.
For example, if an injured worker has an initial ACL repair to his knee (minimum 10% under the Code section), followed by a second ACL repair later (minimum 10%), the PPD is stacked for a cumulative 20% minimum PPD—even if the treating physician assigned a lower percentage.
The general policy behind this “stacking” of the disability percentages listed for surgical procedures is that “repeat or multiple surgeries have a cumulative, negative effect on the function of the body part upon which they are performed” (DaimlerChrysler, 2007 WI 15, ¶ 32, n.14).
Some confusion exists when a joint replacement occurs after prior surgical procedures, all stemming from the same work injury. In the introduction to Code section 80.32, an appropriate reduction can be made for any preexisting disability. Accordingly, applicant and defense attorneys have argued about whether the PPD attributable to a joint replacement can be reduced from prior surgical procedures to the same body part when the surgeries are all after and relate to one work injury.
For example, if a worker has an initial knee ACL repair (10% minimum), followed by a total knee replacement (50% minimum), is the PPD a cumulative 60%, just 50% for the total knee, or 40% based on a reduction?
This issue was resolved in favor of “stacking” the PPD percentages for a cumulative number (60% in the above example). The Wisconsin Court of Appeals recently held that the Commission has consistently interpreted the DaimlerChrysler rule to allow for cumulative minimum PPD ratings where successive surgeries are necessitated by the same work injury; there was no reason to apply the rule differently when one of the surgeries was a total joint replacement. (MG&E v. LIRC, 2011 WI App 110, Ct. App. June 16, 2011).
The Wisconsin Supreme Court recently declined review of the case, which keeps the Court of Appeals ruling in place. Therefore, under the current law, each additional surgery listed in Code Section 80.32 that a worker has after an injury carries a separate and additive PPD percentage under the law—a significant benefit to Wisconsin’s injured workers.
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