Lisney v. Labor & Industry Review Commission

SUNDBY, J.

(dissenting). Section 102.42, Stats., provides medical and hospital benefits for injured employees. Larson states that, "An integral and important part of the benefit scheme of all compensation acts is the provision of hospital and medical benefits." 2 Arthur Larson, Workmen's Compensation Law § 61.11 at 10-766. For a tabulation of medical benefits under the various statutes, Larson refers the reader to Appendix B, Table 15. That table is found in 4 Larson, Workmen's Compensation Law, and lists secs. 102.42, 102.43 and *638102.61, Stats., for Wisconsin. Larson says that, "In forty-seven states such benefits are unlimited as to duration and amount." 2 Larson at 10-767 (footnotes omitted). Wisconsin is one of the forty-seven states. Larson further states:

It is interesting to observe that in the space of about thirty-five years the number of states providing full medical coverage has risen from about a dozen to more than four times that number. This appears to evince agreement with the finding of an authoritative study that 'it is impossible fully to relieve pain and to assure restoration of seriously disabled persons when medical care is arbitrarily limited. Equally important is the convincing evidence that unlimited medical benefits are economically the soundest benefit; that over the long term, they become the least expensive.'

Id. (quoting Cheit, Injury and Recovery in the Course of Employment 42 (1961)).

Wisconsin did not provide full medical coverage until 1973 when the following sentence was added to sec. 102.42(1), Stats: "The obligation to furnish such [medical, surgical and hospital] treatment and appliances shall continue as required to prevent further deterioration in the condition of the employe or to maintain the existing status of such condition whether or not healing is completed." This amendment was adopted by the legislature in response to a proposal by the Council on Worker's Compensation. Each legislative session, the council makes recommendations to the legislature for needed changes in the worker's compensation laws. Section 102.14(2), Stats; Wisconsin Blue Book at 463 (1991-92).

Neither LIRC nor the majority cites any case which has construed the 1973 amendment to sec. 102.42(1), Stats. However, the statute has been interpreted by John *639D. Neal and Joseph Danas, Jr., in Worker's Compensation Handbook § 5.43 (3d ed. 1990), as follows:

The insurance carrier is also liable for reasonable and necessary treatment 'to prevent further deterioration in the condition of the employe or to maintain the existing status of such condition whether or not healing is completed.' Sec. 102.42(1), Stats. Such liability does not cease with the final payment of disability benefits, but is subject to sec. 102.17(4), Stats., which bars the filing of an application for hearing after 12 years from the last payment of compensation.

LIRC and the majority conclude that Lisney's interpretation of the statute conflicts with Kwaterski v. LIRC, 158 Wis. 2d 112, 117-118, 462 N.W.2d 534, 536 (Ct. App. 1990) and Borum v. Industrial Comm'n, 13 Wis. 2d 570, 573-74, 108 N.W.2d 918, 920 (1961). Neither case has any application. Kwaterski involved a claim for permanent, partial disability. Borum involved a claim for permanent disability and, further, was decided before sec. 102.42(1), Stats., was amended in 1973.

The majority defers to LIRC's interpretation because LIRC has the duty of applying ch. 102, Stats. Majority op. at 633. However, LIRC has not previously applied sec. 102.42(1), Stats., to an employee's claim for medical benefits under the circumstances present here. At least it does not claim that its interpretation of the statute is longstanding. So far as I can determine, this is a case of first impression. We therefore give no deference to the agency's interpretation of sec. 102.42(1), Stats., Local No. 695 v. LIRC, 154 Wis. 2d 75, 84, 452 N.W.2d 368, 372 (1990), or, at the most, "due weight." School Dist. of Drummond v. WERC, 121 Wis. 2d 126, 133, 358 N.W.2d 285, 289 (1984). However, we will not give an *640unreasonable construction to a statute. Currie v. Schwalbach, 132 Wis. 2d 29, 42, 390 N.W.2d 575, 580 (Ct. App. 1986), aff'd, 139 Wis. 2d 544, 407 N.W.2d 862 (1987). As Lisney points out, LIRC's construction of the 1973 amendment to sec. 102.42(1), Stats., makes the statute impossible to administer and virtually meaningless.