2010AP1849 Madison Gas & Electric v. LIRC

Listen to this article

Employment
Worker’s compensation; stacking

Wis. Admin. Code DWD 80.32(4) permits “stacking” of surgeries necessitated by the same work injury.

“The medical opinion in DaimlerChrysler was that the disability after the second ACL surgery was not cumulative to the disability existing after the first ACL surgery. Instead, according to the medical opinion, the second successful surgery reduced the disability existing after the first unsuccessful surgery to the PPD rating associated with one successful ACL surgery. Nonetheless, the court concluded that, despite the medical evidence, LIRC could reasonably interpret Wis. Admin. Code § DWD 80.32(4) to allow for stacking of the minimum rating for each surgery.”

“In this case, MG&E’s assertion on the effect of the total knee replacement is equivalent, for purposes of our analysis, to the medical opinion in DaimlerChrysler: according to MG&E’s assertion, after the second surgery, as a factual matter the remaining disability is associated only with the second surgery. Given that there was no apparent reason based on the facts in DaimlerChrysler to stack the PPDs and that the court instead relied on its assessment of the general reasonableness of LIRC’s interpretation of the rule, it is not unreasonable here for LIRC to add the minimum PPDs of both surgeries. Stated differently, the thrust of MG&E’s argument amounts to a challenge to DaimlerChrysler and, therefore, it must fail.”

Reversed and Remanded.

Recommended for publication in the official reports.

2010AP1849 Madison Gas & Electric v. LIRC

Dist. IV, Dane County, Fiedler, J., Vergeront, J.

Attorneys: For Appellant: Harlow, R. Duane, Madison; For Respondent: Danas, Joseph P., Jr., Milwaukee; Flinchbaugh, Staci M., Milwaukee

Full Text