STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

GERALD ARTHUR KLETTKE, Applicant

AMERICAN INNVOTECH, Employer

EMPLOYERS INSURANCE CO OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1989-041491


The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order dated December 3, 2009. Both parties have submitted briefs. At issue is the nature and extent of disability due to the applicant's work-related right knee injury on May 31, 1989. The commission has reviewed the entire record in this matter and hereby affirms in part and modifies in part the administrative law judge's findings and order.

MODIFIED FINDINGS OF FACT

The matter was submitted to the administrative law judge based upon stipulated facts. The stipulated facts include the applicant injured his right knee on May 31, 1989, while working for the employer which ultimately necessitated a total knee replacement performed by Dr. Duck on April 16, 2008. The applicant has undergone the following surgeries to his right knee including lateral meniscectomy on May 8, 1990, for which he was assessed ten percent permanent partial disability at the right knee for the injury dated May 31, 1989, and has received payment of such permanent partial disability.

The applicant suffered a separate right knee injury working for a separate employer on May 17, 1995, and underwent a lateral meniscectomy and chondroplasty of the medial femoral condyle and lateral tibial plateau on June 16, 1995, as a result of the injury on May 17, 1995. The applicant also underwent a removal of loose bodies on March 24, 1997, and an arthroscopy, abrasion arthroplasty, lateral femoral condyle, lateral tibial plateau and minor partial debridement of lateral meniscus on June 14, 1999, as a result of the work incident on May 17, 1995. The applicant has received compensation for 15 percent permanent partial disability at the right knee as a result of the May 17, 1995 injury.

Pertinent portions of Wis. Admin. Code § DWD 80.32 provides that the minimum percentages of loss of use for amputation levels, losses of motion, sensory losses and surgical procedures including the disability set forth in this section are the minimums for the described conditions. However, findings of additional disabling elements should result in an estimate higher than the minimum. The minimum also assumes that the member, the back, etc was previously without disability. Appropriate reduction shall be made for any preexisting disability. Knee prosthesis is a total of 50 percent permanent partial disability.

At the time of the applicant's work injury on May 31, 1989, he had no preexisting permanent disability to his right knee. The date of injury, not the date of any surgery, is the appropriate temporal frame of reference for evaluating the existence of any preexisting permanent partial disability. The applicant is entitled to receive a full 50 percent right knee permanent partial disability rating as a result of having undergone the total right knee replacement surgery on April 16, 2008, for a total of 60 percent permanent partial disability at the right knee due to the work injury on May 31, 1989. No deduction can be made for the 25 percent permanent partial disability rating due to the work incident in May 1995 and subsequent surgeries. The total permanent partial disability due to the applicant's right knee injury on May 31, 1989, is 60 percent including the initial ten percent permanent partial disability assessed in 1991 and the additional 50 percent assessed for the total knee replacement surgery in 2008.

NOW, THERFORE, this

INTERLOCUTORY ORDER

The administrative law judge's Findings and Order are affirmed in part and reversed in part in accordance with the above findings. The matter is remanded to the department for calculation of the appropriate amount to be paid to the applicant for 60 percent permanent partial disability at the right knee less any amounts credited for payments of permanent partial disability made to the date of calculation, as well as temporary total disability and temporary partial disability payments due, and attorneys fees.

Dated and mailed June 30, 2010
klettge : 175 : 5 ND ? 5.18

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

This case involves the stacking of permanent partial disability due to surgeries performed for the same work injury on the same knee. The applicant contends in his petition for commission review the applicant is entitled to 60 percent permanent partial disability due to his work injury on May 31, 1989, for a total of 255 weeks of compensation at the rate of $125 per week or a total of $31,875. Subtracting amounts previously paid from the total entitlement, the applicant contends he is still entitled to a payment of $13,281.25. The employer contends in its response to the petition for commission review the applicant's preexisting permanent disability equivalent of 25 percent (including ten percent for the work injury in May 1989 and 15 percent for the work injury in May 1995) should be taken into consideration and then appropriate reduction made in accordance with the Wis. Admin. Code § DWD 80.32. The employer states that this is exactly what the department did in its worksheet and which was confirmed by the administrative law judge's Order of December 3, 2009.

The Wisconsin Supreme Court addressed this issue in DaimlerChrysler v. LIRC and Glenn May, 299 Wis. 2d 1 (S. Ct. Dec. Feb. 2, 2007). DaimlerChrysler involved a claim for permanent partial disability for two successive ACL repairs. The Wisconsin Supreme Court affirmed the commission's stacking of ten percent permanent partial disability for each surgery for a total of 20 percent permanent partial disability for the same work injury. The Wisconsin Supreme Court noted the commission was reasonable in interpreting Wis. Admin. Code § DWD 80.32(4) to provide for stacking of permanent partial disability ratings for each successive surgery due to the same work-related knee injury. The court noted there was no preexisting disability or condition that predated the employee's original injury at work in the DaimlerChrysler case, and the commission appropriately determined that a reduction under Wis. Admin. Code § DWD 80.32(1) was not appropriate for the initial ACL repair in that case. The Wisconsin Supreme Court stated the commission had determined that a reduction under Wis. Admin. Code § DWD 80.32(1) is appropriate for previous losses of range of motion and amputations but not for the surgical procedures listed in Wis. Admin. Code § DWD 80.32.

The employer argues in the current case that DaimlerChrysler is distinguishable from the situation presented in the current case because our current case involves several different types of surgical procedures and not simply repetitive ligament repairs. However, the commission does not find any basis to distinguish between surgical procedures in determining whether to make a deduction for a previous surgical procedure for the same knee injury.

In Hall v. Consolidated Thermoplastics, WC Claim No. 1995022808 (LIRC Sept. 29, 1999) the commission made it clear that where a surgery is performed to cure and relieve the effects of the same work injury, the commission will not make a reduction in the amount awarded for post-injury surgeries by subtracting the minimum assessment for one surgery from a later surgery.

The applicant's work injury in 1989 led to the need for his initial surgery in 1990 and ten percent permanent partial disability award in 1991. Further, all physicians agree the resulting degenerative arthritis from the initial injury and surgery led to the need for the total right knee replacement surgery in April 2008. Therefore, according to the commission's practice and holdings in Hellendrung v. Wal Mart, Claim No. 1999039147 (LIRC Feb. 23, 2001) and DaimlerChrysler v. LIRC, the applicant is entitled to 60 percent permanent partial disability due to his work-related right knee injury in 1989 without reduction for subsequent surgeries due to a separate injury.

The administrative law judge appropriately noted the applicant had no permanent partial disability to his right knee prior to the work injury on May 31, 1989 and the date of injury, not the date of any surgery, is the appropriate temporal frame of reference for evaluating the existence of any preexisting permanent partial disability.

Due to his work-related surgeries for his right knee injury on May 31, 1989, including his total right knee replacement surgery on April 16, 2008, the applicant is entitled to 60 percent permanent partial disability for his right knee injury including a 50 percent permanent partial disability at the right knee, which has not been paid.

The commission remands the matter to the department for calculation of the amount due to the applicant for the 60 percent permanent partial disability at the right knee due to his original surgery in 1990 and subsequent right knee replacement surgery. It appears the applicant has already been paid for the ten percent permanent partial disability assessed in 1991. The commission is unable to determine the basis for the deductions shown on the Worker's Compensation Computation Worksheet dated November 13, 2009, however it appears that apparently deductions were made for the applicant's permanent partial disability ratings for the 1995 injury, which is not an appropriate deduction. Therefore, the commission remands to the department for calculation of the permanent partial disability and temporary total disability due as well as attorney's fees for the work injury on May 31, 1989, which resulted in 60 percent permanent partial disability at the right knee less the ten percent previously paid.

NOTE: In Braun v. Froedtert Malt, Claim 2001-047953 (LIRC Sept. 19, 2007), the commission committed an unintended error when a 7.5 percent permanency rating that had been assessed for a 2001 work-related knee injury, was subtracted by the commission from a 50 percent permanency rating given for a 2005 total knee replacement. The commission found that the 2001 knee injury was causative for the 2005 total knee replacement. Therefore, because the same work injury was causative of the 2001 disability and the 2005 disability, the permanency awards should have been cumulative. The commission made the error of subtracting the 7.5 percent assessment from the 50 percent assessment because when drafting its decision, it misunderstood the 7.5 percent assessment to have been attributable to a preexisting ACL tear (existing prior to the 2001 injury). In fact, the 7.5 percent assessment was the permanency assessment accepted for the 2001 injury. A permanency rating of 12.5 percent had been subtracted from a proposed assessment of 20 percent permanency for the 2001 injury, and attributed to the preexisting ACL tear. This error was brought to the commission's attention by a recent circuit court decision that cited the Braun case. By then the commission had lost jurisdiction to reopen the Braun decision, but Braun was never intended to alter the commission's interpretation of cumulative permanency awards for all surgeries attributable to the same work injury, including total knee replacement.


cc: Attorney Robert Ward
Attorney Peter Topczewski


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