Stacking Disability Ratings Permitted for Worker’s Compensation

The Wisconsin Court of Appeals recently confirmed that an injured worker may “stack” the permanent partial disability (PPD) percentages for multiple surgical procedures arising out of the same work injury. See Madison Gas & Electric v. Labor and Industry Review Commission, Case No. 2010AP1849 (WI Ct. App., Dist. IV, June 16, 2011).

In this case, David Parent, an MG&E employee, injured his left knee on the job. The knee injury, a meniscus tear, was surgically repaired and his doctor assessed a PPD rating of five percent, which MG&E paid. Years later, Mr. Parent underwent a total left knee replacement surgery, which was a consequence of the original injury. The doctor assessed a 50 percent PPD rating after the second surgery. MG&E paid what amounted to a 45 percent PPD rating, taking a five percent credit for the original amount paid out after the first surgery.

Mr. Parent requested a hearing before an Administrative Law Judge (ALJ) contending that the original five percent should be added to the 50 percent, not subtracted from it. The ALJ agreed with Parent and concluded that “each surgical procedure that results from a given injury must receive the minimum PPD rating listed in Wis. Admin Code § DWD 80.32.” MG&E at ¶ 4. MG&E petitioned the Labor and Industry Review Commission (LIRC) for review and the LIRC affirmed the ALJ’s findings and conclusions. MG&E then appealed the LIRC’s decision to the circuit court, which reversed the LIRC decision. The circuit court determined:

• That the LIRC had interpreted § DWD 80.32 inconsistently and, therefore, its decision was entitled to no deference
• That it was unreasonable to add the percentages from two surgeries where the latter was a replacement and not a repair (i.e. the second surgery essentially subsumed the first surgery)

The LIRC appealed to the Wisconsin Court of Appeals, which reversed the circuit court decision. The Court of Appeals recognized that the agency’s interpretation of its own rules is entitled to controlling weight unless plainly erroneous or inconsistent with the regulations. The Court of Appeals relied heavily on a similar case, DaimlerChrysler v. LIRC, and concluded that the LIRC’s interpretation of  § DWD 80.32 was neither inconsistent nor unreasonable. The Court of Appeals concluded, in accordance with DaimlerChrysler, that the “LIRC’s interpretation of Wis. Admin. Code § DWD 80.32(4) to permit ‘stacking’ of surgeries to the knee necessitated by the same work injury, even when the second injury is a total knee replacement, is a reasonable interpretation.” MG&E at ¶ 34. Therefore, the LIRC’s decision to award a total of 55 percent PPD for Parent’s two knee surgeries necessitated by the same work injury was affirmed.

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