By Thomas Domer of the Wisconsin Bar
Charlie Domer recently won a significant case that advances the rights and benefits of injured workers. According to our Labor and Industry Review Commission, each, additional invasive joint replacement (which carries a minimum percentage of disability) can be “stacked” together up to a full 100% disability to that joint. (The case is : Knutson (dec’d) v. Flat Creek Eatery & Saloon, WC Claim No. 2001-055356 (LIRC May 24, 2012)).
Specifically, Robert Knutson (who unfortunately passed away while the case was on appeal) suffered an undisputed injury to his left hip in 2001. He underwent no less than ten surgical procedures, at least three of which constituted totalhip replacements. Under Administrative Code section 80.32(3), a “total hip prosthesis” carries a minimum 40% PPD. Based on previous Wisconsin Court and LIRC decisions, generally any subsequent invasive surgery resulting from the same work injury carries an additional, additive PPD rating under Section 80.32 (DaimlerChrysler).
Joint replacements can be problematic, but the Court of Appeals recently confirmed a LIRC decision that awarded a “stacked” 55% for a post-injury medial meniscus repair (with its 5% min) and later total knee replacement (carrying 50% min). MG&E v. LIRC, 2011 WI App 110, 802 N.W.2d 502.
The Knutson case, however, was one of first impression because it dealt with multiple post-injury joint replacements. Knutson argued that LIRC should award the Code minimums cumulatively for each total hip replacement procedure, resulting in 100% PPD. The defense contended that a “natural” hip can only be replaced one time, and therefore, any subsequent or revision surgeries on the artificial appliance do not trigger the 80.32 Code minimums. The ALJ agreed with the respondent. The Commission reversed and awarded 100% PPD to the hip—thereby allowing “stacking” of Code minimums for multiple post-injury joint replacement surgeries. LIRC indicated that 80.32 minimums applied to all joint replacements involving the installation of an artificial device to replace a missing body part, regardless of whether the missing body part was “natural” or had been removed in an earlier procedure.
This case represents a huge win for injured workers, especially as more and more injuries result in multiple hip replacements or knee replacements.
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