Monthly Archives: February 2012

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.




Photo Credit: Apple’s Eyes Studio /

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.

Photo Credit: jannoon028/

WCRI: Wisconsin Injured Workers Motivated to Return to Work (Part 2)

Last week, we began a discussion about a recent study by the WCRI which found that Wisconsin injured workers have better return-to-work outcomes compared to other states (see Part 1 of this article). In today’s post, we continue on said topic.

Letting workers choose their own doctors meant that there was less doubt about whose side they were really on.

Significance of Worker’s Choice of Treating Doctor

Worker’s compensation administrators and experts who were interviewed indicated that worker choice of provider was the foundation for the Wisconsin system,  and that it was central to establishing injured workers’ trust in their treating doctor’s recommendations about treatment and return to work.  (Although Wisconsin worker’s compensation insurance carriers have regularly attempted to limit employee choice, those efforts have been stopped in the advisory council, a group of labor and employer representatives who meet to recommend changes in the law.)

Since Wisconsin workers have a choice of practitioners, workers can have greater confidence in their treating doctor’s recommendation regarding the ability to return to work.  Significantly, the study found that workers’ choice of providers did not lead to longer absences from work.  In fact, survey results among injured workers specifically indicated that Wisconsin injured workers returned to substantial employment faster than workers in ten other states included in the study.


The “85% Rule”

Lastly, the study found that Wisconsin’s workers’ compensation system encourages employers to accommodate injured workers with permanent restrictions, and for the worker to accept these offers.

The most prominent feature is the “85% Rule” which bars an employee from making a claim for a Loss of Earning Capacity if the employer rehires the employee 85% of his pre-injury wage.  On the other hand, if the employer cannot or does not accommodate the employee’s permanent restrictions, Loss of Earning Capacity benefits can be four to seven times higher than functional impairment benefits alone.  Workers who refuse legitimate job offers can lose their right to Loss of Earning Capacity benefits.

And since Permanent Partial Disability benefits are paid at  only 35% of the temporary disability benefit maximum, there is a substantial financial incentive for workers to accept the job when shifting from temporary to permanent disability benefits.  All this is good news for Wisconsin’s system and Wisconsin workers.

However, during the economic downturn, employers are finding it more difficult to offer light transitional or modified duty.  Quite simply, the employer may not have a job available or one that meets the employee’s restrictions, especially in these hard economic times.



Photo Credit: Ambro/

WCRI: Wisconsin Injured Workers Motivated to Return to Work (Part 1)

Injured workers in Wisconsin are more motivated to return to work-- thanks to the state's workers' compensation system.

With unemployment numbers high, injured workers face increasing challenges in returning to work.  A study by the Workers’ Compensation Research Institute (WCRI) titled “Factors Influencing Return to Work for Injured Workers: Lessons From Pennsylvania and Wisconsin” indicates that those two states have reported better return- to- work outcomes compared to other states, even during economic downturn.

This study focuses on “long term unemployed injured workers” (defined as workers who have been out of work for three months or more). These workers, unlike the vast majority of injured workers highly motivated to return to work after an injury, face particular challenges in returning to work – challenges that are even greater considering economic hard times.

The study tried to identify which worker’s compensation systems features facilitated return to work for long-term unemployed injured workers, and which features serve as barriers to return to work for these workers.


The Wisconsin Scenario

Earlier research done by WCRI indicated that workers in Wisconsin have higher rates of return to work, and workers tend to return to work sooner than in other states.  The reason: Employer and injured worker motivation to return to work, as well as multiple Wisconsin workers’ compensation system features.

One of the features which encourages return to work  in Wisconsin is the transition between temporary disability and Permanent Partial Disability benefits. Wisconsin encourages incentives for both the worker and the employer to return workers with permanent restrictions to work, and for injured workers to accept offers of legitimate employment.


“The Healing Plateau”

 Unlike many other states, Wisconsin’s clear standards for terminating temporary disability benefits encourages return to work.  As they are effectively communicated by employers and insurers, and well understood by injured Continue reading

Healthcare Budget Double Talk and the Walker Recall

Governor Scott Walker of Wisconsin

I ordered my “I Recalled Walker” bumper sticker today.  I’m proud to be part of a grassroots campaign to elect a new governor, one who will be more attuned to the needs of Wisconsin workers.  And as delighted as I am that over a million concerned Wisconsin citizens have signed a recall petition, I am also reminded daily of the need to fight against the Koch brothers who are backed by corporate cash.

Injured workers call our office every day indicating they have been denied worker’s compensation benefits, asking about how they can obtain necessary medical treatment.  Now, Governor Walker, in a misguided attempt to balance the budget, wants to cut an additional 50,000 adults from the State’s health care rolls.

In a remarkable display of political doublespeak,  Walker’s administration– which in its fundraising efforts have proudly extolled successful efforts at balancing the budget— quietly indicated to the federal government in December that the State had in fact, a deficit.

Why this duplicity? Because federal law allows Wisconsin to drop medical coverage for adults to save money on health care costs if the State can show it has a deficit.

Dropping over 50,000 adults would obviously but shortsightedly save the State money.  Walker’s administration used a “cash accounting” method in its promotional materials indicating that it will have a balanced budget, but when it reported to the federal government the administration used more generally accepted accounting principles showing debts that include promises to pay in the future.

The net result is that over 50,000 Wisconsinites may now be dropped from State health coverage because Walker’s administration duplicitously told the feds that it had a “budget deficit”.

On behalf of Wisconsin’s injured workers: shame on you, Governor Walker.


Aging "Baby Boomers" and Workers' Compensation Part 2

Last week, we started talking about some of the NCCI’s interesting conclusions about the implications of “Baby Boomers” in the workplace (see Part 1 of this article). In today’s post, we discuss these conclusions in more detail.

Recent NCCI stats show that all groups of workers aged 35-64 have similar costs for work-related injury compensation.

The frequency of injury has steadily declined since the mid-1990s, with age group differences in frequency largely eliminated.  The decline in frequency has occurred for all age groups.  The differences among age groups in the early 1990s had almost completely disappeared by 2010.

A longstanding worker’s compensation maxim that “younger workers have much higher injury rates” is no longer true.  For example: the injury rate for workers age 55-64 was 16% lower than the frequency for all workers in the mid-1990s but actually 1% higher in 2010, indicating that the differences have clearly narrowed.

Lastly, in terms of severity of claims, older workers certainly cost more, primarily due to higher wages and increased medical costs for older workers.  The severity of medical costs Continue reading

Surprising Findings On Baby Boomers and Worker’s Compensation (part 1)


You may be surprised to learn that age does not correlate with frequency of injury.

You may be surprised to learn that age does not correlate with frequency of injury.

What is the impact on worker’s compensation from aging Baby Boomers who have postponed their retirement, working much longer than the previous generation? In a recent study by the NCCI (National Council Compensation Insurance) some interesting and surprising conclusions resulted. It is not surprising that the number of older workers is increasing. The study looked at the frequency and severity across age groups and tried to identify factors that accounted for the severity of injuries between older and younger workers.

Among the key findings are the following:

  • The major difference among age groups occurs between the 25-34 and the 35-44 age groups. All workers 35-64 appeared to have similar costs per worker. These reassuring findings suggest an aging workforce may have a less negative impact on the lost cost per worker than many analysts originally thought.
  • Many workers’ compensation professionals have the belief that younger workers have a much higher injury rate. That appears not to be true any longer. Differences in frequency by age have virtually disappeared.
  • The major factor involving older workers involves severity. Older workers tend to have more shoulder rotator cuff claims and knee injuries while younger workers have more back and ankle sprains.
  • Higher wages for older workers are a key factor leading to higher costs for older workers. On the medical side, more treatment per claim has increased medical costs.

The study indicated that older workers account for an increasing share of the U. S. workforce. In particular, the share of workers age 55-64 has been growing steadily. The number of workers Continue reading

Newt Wants to Replace Wisconsin’s (and every other State’s) Worker’s Compensation Systems

Newt Gingrich

Basking in the glow of his evangelical-inspired victory in South Carolina’s Republican presidential primary, Newt Gingrich is trying to unify his disparate assembly of Tea Party malcontents, religious moralists, anti-immigrant reactionaries, and most significantly, “anti-government encroachment” fanatics.

Before his candidacy gains any more momentum, we should look back and reflect on the havoc his positions would create in our current State systems. Governor Rick Perry invited Gingrich to speak to the Republican Governors Association after last November’s Republican landslide. Gingrich decried the “leftist political system that has been dominating America since 1932.” Obviously, his attack is leveled at the New Deal, Great Society systems that provide benefits (he calls them entitlements) for so many– Social Security Disability, Medicare, Equal Rights legislation, etc.

More significantly for the worker’s compensation system, he indicated in his 12 Step Program (sound familiar) that he wanted to replace State’s worker’s compensation programs. In an obvious attack on worker’s compensation attorneys, his plan was to “replace litigation-focused worker’s compensation with a rehabilitation and capabilities focused program that maximizes the speed of helping people medically, and focuses on retraining and focuses on what they can do rather than what they can’t do.”

While the medical end of this aim is laudable, Wisconsin’s system (and many others) currently does focus on retraining and what workers can do following their injury. Wisconsin’s vocational rehabilitation Continue reading