ROBERT E KNUTSON (DEC'D), Applicant
FLAT CREEK EATERY & SALOON, Employer
TRI STATE INS CO OF MN, Insurer
In April 2009, the applicant filed a hearing application seeking compensation for permanent partial disability at 100 percent compared to loss of the leg at the hip. The employer and its insurer (collectively, the respondent) conceded jurisdictional facts, a compensable work-related left hip injury on July 31, 2001, that subsequent treatment for the hip injury was reasonable and necessary, and a permanent partial disability rate of $184 per week. The respondent also conceded and paid permanent partial disability at 50 percent compared to loss of the leg at the hip.
The matter was decided on stipulation without a hearing by an administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development. In his interlocutory order dated April 13, 2011, the ALJ dismissed the hearing application. The applicant filed a timely petition for review.
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 makes the following:
The applicant injured his hip at work on July 31, 2001, tearing his left hip labrum. After two arthroscopic surgeries, he underwent a left total hip arthroplasty on January 10, 2005. He had problems with infection and underwent two irrigation/debridement procedures in the following days. Thereafter, he underwent the following procedures:
The medical examiner retained by the employer and its insurer, Dr. Lemon, states that the applicant had a left total hip arthroplasty procedure on January 10, 2005; a removal of total hip prosthesis on March 29, 2005; "a repeat left total hip arthroplasty revision surgery" on November 9, 2005; a removal of prosthesis on January 12, 2006; and a reimplantation of his left total hip arthroplasty on April 3, 2007. Exhibit 3, pages 6 and 7.
At issue, now, is the extent of permanent partial disability. The applicant relying on DaimlerChrysler v. LIRC, 2007 WI 15, 299 Wis. 2d 1, and MG&E v. LIRC, 2011 WI App 110, 336 Wis. 2d 197, review denied, 2012 WI 2, 338 Wis. 2d 323, asserts that the commission should award the administrative code minimum for a hip prosthesis procedure cumulatively for each arthroplasty or arthroplasty revision procedure he underwent. As the code minimum for a hip arthroplasty is 40 percent,(1) he contends he is entitled to the 100 percent maximum award for loss of a leg at the hip.
The respondent, on the other hand, relies on disability estimates from two doctors. The first, Neal Rockowitz, M.D., opined in February 2009 that the applicant's condition was stationary and that he had undergone a status post-total hip revision with excellent results as of that time. The doctor rated 50 percent PPD based on the AMA guidelines. Exhibit 1.
In a follow-up letter at Exhibit 2, Dr. Rockowitz estimated permanent partial disability under the Wisconsin Worker's Compensation Guidelines. He again rated permanent partial disability at 50 percent, noting that while the minimum for a hip prosthesis was 40 percent, the applicant had numerous revision surgeries and infections and that it therefore was reasonable to increase his rating to 50 percent compared to amputation at the hip.
The respondent also offers the opinion of Richard Lemon, M.D. Exhibit 3. He noted the applicant had 10 surgical procedures on his left hip related to the
on-the-job injury and that, after the 10 procedures, the applicant had a stable total left hip arthroplasty with no infection. Because, by the time of his medical record review, the applicant's hip was not infected, not draining, and not dislocating, Dr. Lemon estimated a permanent partial disability at 40 percent compared to amputation at the left hip which, of course, is the code minimum for a single left hip arthroplasty. Dr. Lemon adds:
Apparently there is some confusion regarding the amount of permanent partial disability Mr. Knutson should be awarded because of his 10 left hip surgeries. However, Mr. Knutson's current condition is a stable left total hop arthroplasty. Therefore, he has a 40 percent permanent partial disability as compared to amputation of the left hip due to his stable left total hip arthroplasty.
If Mr. Knutson had not had an infection of his left hip following his initial total hip arthroplasty of January 10, 2005, Mr. Knutson would have had a
40 percent permanent partial disability as compared to amputation at the left hip following his initial left total hip arthroplasty. However, due to
Mr. Knutson's morbid obesity as well as other medical problems leaving him immunocompromised, Mr. Knutson developed an infection following his left total hip arthroplasty that required seven more surgical procedures in order to obtain a stable left total hip arthroplasty. These additional seven surgical procedures placed Mr. Knutson back to the initial baseline permanent partial disability rating that he would have achieved had he only had one left total hip arthroplasty. Mr. Knutson is not entitled to any additional permanent partial disability because he had more than one surgery. These additional multiple surgeries were required in order to clear the infection from Mr. Knutson's left total hip arthroplasty procedure of January 10, 2005. ...
In the following paragraph in his report, Dr. Lemon went on to state that, prior to his final successful total hip arthroplasty, the previous unsuccessful surgeries did not contribute to any permanent partial disability rating. He also explained that the revision arthroplasty procedures were not hip replacements because they were revisions of the original total hip arthroplasty procedure necessary to treat the infection.
In its brief, the respondent contends that the minimum 40 percent permanent partial disability rating under the administrative code applies only when the worker's "natural" hip is totally replaced, and that can only be done once. Any subsequent surgery addressing or replacing the artificial appliance, not the natural joint, the respondent contends, does not trigger the code minimum rating under Wis. Admin. Code § DWD 80.32(3).
In DaimlerChrysler, the supreme court did not specifically address the question of repeat prosthesis surgeries, noting that it would not address hypothetical situations not before the court. It did, however, suggest that the maximum award for multiple knee surgeries would be 100 percent, or the rating for an amputation or total loss of the leg at the knee. DaimlerChrysler v. LIRC, 299 Wis. 2d 1, 33. In a footnote, moreover, the court also noted that "the LIRC's decision recognizes that repeat or multiple surgeries have a cumulative, negative effect on function of the body part upon which they are performed." Id, 299 Wis. 2d 1, 33, footnote 14).
In MG&E, the court of appeals addressed this portion of the DaimlerChrysler decision, stating:
The DaimlerChrysler court's comments on the "cumulative, negative effect on function of the body part upon which [the repeat or multiple surgeries] are performed" is not a factual statement that pertains only when certain surgical procedures are involved. There are no such facts referred to in the DaimlerChrysler opinion. Rather, we understand the court in this footnote to be concluding as a matter of law that LIRC can reasonably make this assumption, despite medical opinion to the contrary.
MG&E v. LIRC, 336 Wis. 2d 197, 29.
Further, as the supreme court noted in DaimlerChrysler, the "subcommittee note" appended to Wis. Adm. Code § 80.32(11), which deals with disability due to spinal injuries, indicates that a separate allowance is to be given for every procedure done to relieve the effects of a disc lesion or spinal cord pressure. The subcommittee note goes on to indicate that a fusion followed by a "refusion" would increase the disability award by the five percent code minimum for a fusion. In DaimlerChrysler, the court concluded that subcommittee note discussing the spine in 80.32(11) could be considered in construing other subsections of the rule dealing with post-surgery disability at other areas of the body. See DaimlerChrysler v. LIRC, 299 Wis. 2d 1, 28-30. This supports the conclusion that a prosthesis revision procedure, like a refusion, retriggers the code minimum rating.
The administrative code provides for a 40 percent permanent partial disability for a "prosthesis total." In
MG&E v. LIRC, 336 Wis. 2d 197, 14 footnote 5, the court stated that a "prosthesis" is "an artificial device to replace a missing part of the body." As is clear from Dr. Lemon's report, a prosthesis was removed and
re-implanted twice after the first prosthesis procedure. Multiple or revision prosthesis procedures involve installing an artificial device to replace a missing body part, regardless of whether the missing body part (here the natural hip) had been removed in an earlier procedure or not.
Dr. Lemon's opinion suggests that failed procedures do not count in rating permanent partial disability when a subsequent successful procedure is performed. But those are the facts presumed in the subcommittee note to Wis. Admin. Code § DWD 80.32(11): a failed or inadequate fusion necessitating a second procedure at the same level, and resulting in a permanent partial disability rating counting both. More importantly, those were the facts in DaimlerChrysler, an inadequate ACL repair, followed by a successful redo procedure resulting in improved function at the knee, yet the court and the commission awarded the code minimum permanent partial disability of 10 percent for each (totaling 20 percent for both).
The respondent cites Daul v. Geenen Explosives, Inc., WC claim no. 92050191 (LIRC March 8, 1995), a case in which a worker underwent a hip replacement for a work related motor vehicle injury, followed by a second hip replacement surgery after a fall at work in May of 1990. In Daul, the commission affirmed the administrative law judge's decision which did not award any additional permanent partial disability compensation following the second hip replacement.
Daul, however, is distinguishable. As the applicant points out, Daul involved surgeries for two separate injuries, a situation distinguished by the court in DaimlerChrysler. (Id., 299 Wis. 2d 1, 25, discussing King v. DOT, WC claim nos. 2001007515 and 2003012619 (LIRC Apr. 27, 2005). Further, the case was decided before the appellate decisions in DaimlerChrysler and MG&E. Indeed, Daul's second injury in May 1990 occurred before substantial revision to Wis. Admin. Code § DWD 80.32, effective July 1, 1994. Those revisions included the addition of the subcommittee note referred to above, as well as a modification of the language at Wis. Admin. Code § DWD 80.32 (intro.) to add a reference to surgical procedures. The language added in both of these changes was cited by the supreme court in DaimlerChrysler as support for its conclusion that the commission reasonably interpreted the code "to award cumulative minimum PPD for multiple ligament repair procedures when the resulting award is higher than the highest medical estimate..." Id., 44, see also: 28 to 30, and 32. In other words, Daul was decided under a substantively different rule, without the guidance offered by the appellate courts in subsequent published decisions.
Based on the foregoing, the commission therefore concludes that the applicant is entitled to permanent partial disability at 100 percent at the hip. After deducting the previously conceded and paid permanent partial disability at 50 percent compared to amputation at the hip, the applicant is entitled to an additional 50 percent, or 250 weeks at the conceded weekly rate of $184, totaling $46,000. Information obtained from the department's online records(2) indicates that, as of May 7, 2012, 17.1667 weeks of the additional compensation totaling $3,158.67 have accrued, while 232.8333 weeks totaling $42,841.33 remains unaccrued.
The applicant approved the direct payment of an attorney fee, set at 20 percent of the additional amounts awarded under Wis. Stat. § 102.26. The future value of the fee is thus $9,200, or twenty percent of $46,000. However, because the fee is attributable in part to disability compensation that has not yet accrued, it is subject to an interest credit of $894.67 to reflect the fee's present value of $8,305.33. That amount shall be paid to the applicant's attorney within 30 days.
The amount due the applicant within 30 days is $2,526.93, which equals the accrued portion of the award ($3,158.67), less the fee thereon ($631.73). The amount remaining to be paid to the applicant as it accrues after May 7, 2012 is $34,273.07, which equals the unaccrued portion of the award ($42,841.33) less the fee thereon ($8,568.27). The amount remaining to be paid shall be paid beginning on June 7, 2012, in monthly installments of $797.33, as it accrues.
Finally, the applicant is deceased. The applicant's attorney identifies Roberta F. Knutson as his wife and legal dependent, and asserts she is entitled to the remaining permanent disability as a component of her claim for a death benefit under Wis. Stat. § 102.47. The respondent raises no issues concerning payment of the award on appeal. Consequently, the commission orders payment of the entire amount due to the applicant to Mrs. Knutson.
Jurisdiction is reserved to permit future orders and awards regarding all issues not resolved in this decision.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are reversed.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant's spouse, Roberta Knutson, Two thousand five hundred twenty-six dollars and ninety-three cents ($2,526.93) in disability compensation.
2. To the applicant's attorney, Charles Domer, Eight thousand three hundred five dollars and thirty-three cents ($8,305.33) in attorney fees.
Beginning on June 7, 2012, and continuing on the seventh day of each month thereafter, the employer and its insurer shall pay Roberta Knutson the sum of Seven hundred ninety-seven dollars and thirty-three cents ($797.33) per month until the additional amount of Thirty-four thousand two hundred seventy-three dollars and seven cents ($34,273.07) has been paid.
Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed
May 24, 2012
knutsor . wrr : 101 : 5 ND6 6.19
BY THE COMMISSION:
Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
cc: Attorney Charles Domer
Attorney Jeffrey Strande
[ Search Decisions ] - [ WC Legal Resources ] - [ LIRC Home Page ]
(1)( Back ) Wis. Admin. Code DWD 80.32(3).
(2)( Back ) The department's records show that 239.6667 of the 250 weeks based on the conceded 50% PPD had accrued as of October 28, 2011.