P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 1998-012234

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.


The findings and order of the administrative law judge are affirmed.

Dated and mailed November 30, 2009
parenda : 175 : 5 ND 5.18

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The employer asserts in its petition for commission review, the administrative law judge erred in determining the applicant was entitled to five percent permanent partial disability for the medial meniscus repair of his left knee, as rated on August 26, 1998, and an additional 50 percent for the total knee replacement rated by Dr. Lemon on March 19, 2008. The employer contends the administrative law judge erred in extending the reasoning of DaimlerChrysler v. LIRC, 299 Wis. 2d 1 (2007). The employer states the reasoning in DaimlerChrysler regarding awarding cumulative disability awards for multiple surgeries only makes sense, and the cases holding should only be applied, when the surgeries have a cumulative disabling effect on the applicant. The employer states it does not make sense, however, to award cumulative permanent partial disability benefits when the applicant has undergone a total joint replacement.

In our current case, the applicant injured his left knee while working for the employer on December 4, 1997, resulting in a tear of the medial meniscus which was surgically repaired by Dr. Lemon. The applicant was assigned five percent permanent partial disability for his left knee injury and surgery on August 26, 1998. The applicant subsequently underwent a left total knee replacement on March 5, 2007, with Dr. Lemon and was found to have 50 percent permanent partial disability at the left knee following his second surgery. In Thunder v. Red Cedar Steel Erectors, (Comm. Dec. June 23, 2005), the commission noted that when a work injury makes more than one surgery necessary, the worker is entitled to at least the minimum for the surgeries that he must undergo. In the Thunder case, the employer asserted the 50 percent award for the knee arthroplasty should be reduced by five percent for a previous meniscectomy in 1999, related to the same work injury. The commission followed its prior holding that in a case where one injury results in the need for two surgical repairs to the same level of the body, the reduction for pre-existing disability would not apply.

The commission noted in the Thunder decision, the language of the rule itself allowing for reductions only in the case of pre-existing disability follows a principal that an employer should not have to pay compensation for pre-existing disability that can be separated from the effects of a subsequent work injury. The commission found that pre-existing disability does not include the disability that came into being after the work injury as a result of the first surgery. Similarly, in the case of Lenegar v. Pepsi Cola (Comm. Dec. April 9, 2007), the commission noted that deduction for prior awards or disability ratings for pre-existing disability from ratings following knee replacement surgeries done for subsequent work injuries is appropriate.

In our current case, the administrative law judge appropriately noted that it is clear from DaimlerChrysler that each surgical procedure that results from the given injury must receive the minimum permanent partial disability rating listed in the Administrative Code. Given the supreme court's holding in the DaimlerChrysler case, as well as the commission's holding in Thunder v. Red Cedar Steel Erectors, the administrative law judge appropriately found the applicant was entitled to five percent for the medial meniscus repair, and an additional 50 percent for the total knee replacement rated by Dr. Lemon on March 19, 2008, since both ratings arose out of the same work injury and there was no pre-existing disability established.

cc: Attorney Douglas Phebus
Attorney Joseph Danas

Appealed to Circuit Court.  Reversed May 10, 2010.  Appealed to the Court of Appeals.  LIRC affirmed (circuit court reversed) MG&E v. LIRC and Dave Parent,  2011 WI App 110, 336 Wis. 2d 197, 802 N.W.2d 502. Petition for review denied, December 1, 2011.

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