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Employment Blog

Wisconsin Court of Appeals Allows “Stacking” for Revision Prosthetic Procedures

Authored by Russell W. Wilson
Posted on February 12, 2015
Filed under Employment

The Wisconsin Court of Appeals issued its decision on February 4 in a consolidated appeal that allows permanent partial disability benefits to be “stacked” where revision prosthetic surgical procedures were necessary. The effect of the ruling is to double permanent partial disability benefits.

Three workers had prostheses resulting from compensable industrial injuries: John Blasius had a knee prosthesis; John Peszko a shoulder prosthesis; and, Terry Gruenberg a hip prosthesis. Each worker was entitled to the minimum permanent partial disability (“PPD”) ratings established in DWD 80.32, i.e. 50% loss of use at the knee, 50% at the shoulder, and 40% at the hip joint, respectively.

All three workers required revision procedures. The Labor and Industry Review Commission (“LIRC”) determined that the revision procedures allowed the minimum PPD ratings to be awarded again, i.e. “stacked” upon the earlier awards. The Wisconsin Court of Appeals found LIRC’s decision to be reasonable, and, therefore, controlling. The Court of Appeals found ample support for its decision in existing case law. In DaimlerChrysler v. LIRC, 2007 WI 15, the Wisconsin Supreme Court allowed stacking of PPD benefits following a revision anterior cruciate ligament procedure, and in Madison Gas Electric v. LIRC, 2011 WI App 110, the Court of Appeals had allowed stacking where the second surgery resulted in a total knee replacement. With that precedent, it was not much of a leap for the Court of Appeals to allow stacking in revision prosthetic procedures.

This case is significant because its effect is to double PPD payments in revision prosthetic procedures. Total (100%) loss of use of the leg at the knee joint, for example, equates to 425 weeks times the PPD rate in effect at the date of the injury. For the sake of discussion, the maximum PPD rate for an injury in 2015 is $322. So an initial prosthetic procedure would be 212 ½ weeks times the PPD in effect for that injury. If we use the $322 rate as an example, the award for the first procedure would be $68,425. A revision procedure would allow for an additional $68,425 under the “stacking” rule determined by LIRC and found to be reasonable by the Court of Appeals. The case is General Contractor’s Corp. v. Blasius, 2015 WL 44852 (February 4, 2015).