Tag Archives: Loss of Earning Capacity

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 / FreeDigitalPhotos.net

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/Freedigitalphotos.net

Secondary Smoke

Secondary Smoke is Dangerous

Recent article indicates some public health departments are offering incentives to create smoke-free policies in buildings. The idea is to reduce the exposure to second-hand smoke.

While substantial strides have been made in many states to provide both smoke-free public places and smoke-free workplaces, the dangers of secondary smoke inhalation remain. Continue reading