Tag Archives: post-injury surgery

More surgeries = More benefits (Part 2)

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.

For multiple surgeries on the same work-related injury, permanent disabilities are "stacked"-- after all, having two surgeries rather than one means that you have to recuperate twice.

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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More surgeries = More benefits (Part 1)

Wisconsin workers who undergo post-injury surgery are entitled to a percentage of permanent disability benefits.

Surgeries are commonplace after a work injury.  When an injured worker in Wisconsin has a post-injury surgery, that worker is ordinarily entitled to a minimum percentage of permanent disability.

Permanent partial disability (PPD) generally represents a physician’s assessment of a worker’s functional loss. PPD is payable at a weekly rate equal to two-thirds of the employee’s average gross weekly earnings at the time of the injury, subject to a maximum rate (the rate in 2011 and 2012 is $302/week).

Administrative rules relevant to the Worker’s Compensation Act (Section DWD 80.32) provide mandatory minimum ratings of PPD for injuries to various body parts and surgical procedures. For example:

  • A laminectomy (removal of disc material) at one level of the lumbar spine (e.g., L4-5) carries a minimum 5% disability;
  • A spinal fusion at the same level (e.g. L4-5), results in a minimum 10% disability;
  • Total hip replacements carry a minimum 40% PPD (while a partial hip replacement results in 35% PPD);
  • A total knee replacement has a minimum PPD of 50% (partial knee replacement is 45%);
  • An anterior cruciate ligament (ACL) repair is 10% PPD minimum; and
  • A knee meniscectomy results in 5% PPD minimum.

If a worker has one of the listed procedures, they receive the minimum PPD percentage.  To calculate the value, we look to the applicable percentage, based on the number of weeks the body part is “worth” under the statutes.  For example, a knee is worth 425 weeks under the statutes, so the 20% PPD to the knee is 85 weeks (20% of 425) at the $302/week rate for a 2011 injury, which amounts to $25,670.

Check with us next week for the continuation of this article. Part 2 will discuss multiple surgery disability benefits.


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