2017 WI 72
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1989
COMPLETE TITLE: Tracie L. Flug,
Plaintiff-Appellant,
v.
Labor and Industry Review Commission, Wal-Mart
Associates, Inc. and New Hampshire Insurance
Company c/o Claims Management, Inc.,
Defendants-Respondents-Petitioners.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 370 Wis. 2d 789, 882 N.W.2d 872
(2016 – Unpublished)
OPINION FILED: June 30, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 15, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Chippewa
JUDGE: James M. Isaacson
JUSTICES:
CONCURRED:
DISSENTED: ROGGENSACK, C.J. dissents (opinion filed).
A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-respondents-petitioners Labor and
Industry Review Commission, there were briefs filed by Jennifer
L. Vandermeuse, assistant attorney general, and Brad D. Schimel,
attorney general. Oral argument by Jennifer l. Vandermeuse.
For the defendants-respondents-petitioners Wal-Mart
Associates, Inc. and New Hampshire Insurance Company c/o Claims
Management, Inc., there were briefs filed by Ryan J. Steffes and
Weld Riley, S.C., Eau Claire. Oral argument by Ryan J. Steffes.
For the plaintiff-appellant, there was a brief and oral
argument by Jeffrey J. Klemp and Law Offices of Jeffrey Klemp,
Eau Claire.
2
2017 WI 72
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1989
(L.C. No. 2015CV98)
STATE OF WISCONSIN : IN SUPREME COURT
Tracie L. Flug,
Plaintiff-Appellant,
v. FILED
Labor and Industry Review Commission, Wal-Mart JUN 30, 2017
Associates, Inc. and New Hampshire Insurance
Company c/o Claims Management, Inc., Diane M. Fremgen
Clerk of Supreme Court
Defendants-Respondents-Petitioners.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 DANIEL KELLY, J. Tracie L. Flug suffered from two
medical conditions——a soft-tissue strain, and a degenerative
disc disease. The first was work-related (and has since
resolved), the second is not. She underwent surgery in the
belief it was necessary to treat her work-related soft-tissue
strain. In actuality, it was treating the unrelated
degenerative disc disease. The procedure left her with a
permanent partial disability. Ms. Flug tells us Wal-Mart (her
employer) must compensate her for this permanent partial
No. 2015AP1989
disability because she believed, in good-faith, that the
disability-causing surgery was necessary to treat her work-
related condition. We review the decision of the Labor and
Industry Review Commission (the "Commission") denying Ms. Flug's
claim for permanent partial disability benefits.
I. BACKGROUND
A. Ms. Flug's Injury and Surgery
¶2 Ms. Flug worked as a store supervisor at the Chippewa
Falls Wal-Mart. In February of 2013 she was using a 25-ounce
price scanner in the store's shoe department. After scanning an
item above her head, she felt pain in her neck and right arm as
she lowered the scanner. Ms. Flug sought medical treatment from
Dr. Sabina Morissette. Dr. Morissette diagnosed Ms. Flug with a
"right arm and shoulder strain with possible relation to the
cervical spine itself."
¶3 Ms. Flug was referred to Dr. Andrew Floren, an
occupational medicine specialist, with whom she met the
following month. Dr. Floren's notes state that on the date of
her injury Ms. Flug "developed a severe sudden pain in her right
upper back area. This pain went down the posterior shoulder and
arm to the wrists." At the time of the visit, Ms. Flug stated
that her symptoms were "slowly resolving," but that she had an
"aching burning pain in her upper back" that "radiat[ed] into
the posterior right shoulder and down the arm just a bit." Dr.
Floren also noted that a cervical spine x-ray showed "mild
degenerative changes," but he drew no connection between that
condition and her work injury. He concluded that Ms. Flug had
2
No. 2015AP1989
right upper back and shoulder pain with no sign of cervical
involvement.
¶4 Ms. Flug's condition improved in some ways over the
next few months, but not in others, so Dr. Floren referred her
to Dr. Eduardo Perez, a neurosurgeon. Dr. Perez recommended an
anterior cervical discectomy with fusion/fixation at the C5-C6
and C6-C7 levels. Ms. Flug had the surgery on June 4, 2013. A
month later, she met with Dr. Perez and reported that she was
"doing excellent" and was feeling "almost 100 [percent]." Dr.
Floren released Ms. Flug back to work on July 17, 2013, with a
lifting restriction that was eventually eliminated. Dr. Floren
declared that Ms. Flug reached a healing plateau by November of
2013, and assessed her (at that time) as having a limited
permanent partial disability.
B. Ms. Flug's Application for Benefits
¶5 Wal-Mart agreed that Ms. Flug had suffered a work-
related injury, and its worker's compensation insurance carrier
paid medical expenses up to May 9, 2013, and disability benefits
up to June 22, 2013. But because the insurance carrier did not
agree the degenerative disc disease was attributable to Ms.
Flug's work injury, it refused further compensation for medical
expenses or disability benefits.
¶6 Ms. Flug filed her worker's compensation claim with
the Wisconsin Department of Workforce Development on August 16,
2013. She sought compensation from Wal-Mart for continuing
medical expenses, additional temporary disability benefits
3
No. 2015AP1989
through August 8, 2013, as well as benefits for a 20 percent
permanent partial disability consequent to her back surgery.
¶7 Wal-Mart asked Dr. Morris Soriano to perform an
Independent Medical Examination (IME) of Ms. Flug's injury. In
a report submitted in February of 2014, Dr. Soriano said that
Ms. Flug's records contained evidence of two unrelated medical
issues. He diagnosed Ms. Flug's condition as a "post cervical
strain" (the work-related injury), and "preexisting mild
degenerative disc disease C6-7 and C5-6."
¶8 Dr. Soriano opined that the only injury Ms. Flug
suffered from the February 14, 2013, work-related incident was a
"soft tissue cervical and shoulder strain." He said this
condition "reached an end of healing within a four to six-week
period," long before Ms. Flug underwent her back surgery.
Because that was a reasonable amount of time within which to
recover from such a strain, Dr. Soriano said it would be proper
to conclude that Ms. Flug suffered temporary disability during
that period.
¶9 The disc degeneration, however, was an entirely
different matter. Dr. Soriano said this was a pre-existing
condition and there was never any anatomical or medical
relationship between it and Ms. Flug's soft-tissue strain. In
fact, he said "[i]t is not probable or even possible that the
accident of February 14, 2013, [caused Ms. Flug's] disc
degeneration." Considering the nature of the work Ms. Flug was
performing at the time of her injury, Dr. Soriano also said
"[i]t is not probable or even possible that reaching up with a
4
No. 2015AP1989
25-ounce scanner over a period of time" could have "cause[d] any
disability by precipitating, aggravating or accelerating the
preexisting condition." He also noted that Dr. Floren had
offered no objective evidence of any cervical disability related
to the accident. He concluded, therefore, that the surgery was
not "reasonable, necessary or related" to Ms. Flug's work
injury.
C. Review of Ms. Flug's Claim
¶10 On April 1, 2014, an Administrative Law Judge held a
hearing on Ms. Flug's claims. Dr. Floren submitted a report and
addendum stating that although Ms. Flug's work activities had
not caused her degenerative condition, it was "medically
probable" that they precipitated, aggravated, or accelerated
that preexisting condition beyond its normal progression. Dr.
Floren found the surgery and all medical treatment received
since February 14, 2013, reasonable and necessary to treat the
consequences of Ms. Flug's work-related injury.
¶11 Dr. Soriano also submitted a report. He said Ms. Flug
suffered from "multilevel moderate degenerative disc disease,"
though the condition wasn't aggravated or exacerbated by her
work activity on the date of injury. While Dr. Soriano said
that Ms. Flug's medical treatment prior to June 4, 2013 was
reasonable and necessary to treat her soft-tissue strain, the
surgery performed was "unrelated to the work incident or work
exposure." Dr. Soriano also said "[i]t is not physically
possible that scanning a product on a shelf could have
aggravated or worsened two levels of a previously arthritic
5
No. 2015AP1989
condition at C5-C6 and C6-C7 to the point where it became
symptomatic," and that the surgery "clearly ha[d] no
relationship to any documentable, repetitive, objective
neurological findings."
¶12 The ALJ1 acknowledged that Ms. Flug suffered an injury
at work, but said there was a "legitimate doubt as to the
compensability of the claim as a traumatic injury beyond that
already conceded and paid by [Wal-Mart]." Because the ALJ
concluded Ms. Flug had already received all compensation due to
her prior to the surgery, he dismissed the claim. Ms. Flug
appealed the ALJ's determination, following which the Commission
adopted the ALJ's factual findings and order as its own. The
Commission affirmed the ALJ's decision stating specifically that
Ms. Flug was not entitled to permanent partial disability
benefits because the ALJ had expressed a "legitimate doubt as to
whether [Ms. Flug] suffered any work injury."
¶13 Ms. Flug sought review of the Commission's decision in
the Chippewa County circuit court. There, the Commission
recognized and admitted it had mistakenly concluded the ALJ had
found no work injury at all. It argued the court should
nonetheless affirm the Commission's decision because Ms. Flug's
surgery was unrelated to her compensable injury. The circuit
court2 assumed the existence of Ms. Flug's workplace injury, but
1
Roy L. Sass, presiding.
2
The Honorable James M. Isaacson, presiding.
6
No. 2015AP1989
concluded the Commission/ALJ had a sufficient factual basis to
deny the claim for benefits, and so affirmed. Ms. Flug
appealed.
¶14 In an unpublished opinion, the court of appeals
reversed the circuit court.3 Its analysis focused on whether the
disability-creating treatment must be undertaken to treat a
compensable injury to qualify the employee for benefits. Based
on its reading of Wis. Stat. § 102.42(1m) (2013-14),4 the court
of appeals concluded no such relationship between injury and
treatment was required. Instead, it said the employee only need
have a good faith belief that the treatment was so related. The
court remanded the matter to the Commission to inquire into Ms.
Flug's beliefs.
¶15 The Commission's timely petition for review presented
this single issue: "Does Wis. Stat. § 102.42(1m) make an
employer liable for disability resulting from invasive
treatment, when the claimant has not established that the
treatment in fact treated a compensable work injury?" We
granted the petition, and now affirm the Commission's order
dismissing Ms. Flug's claim for disability benefits.
3
Flug v. LIRC, No. 2015AP1989, unpublished slip. op. (Wis.
Ct. App. June 21, 2016).
4
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
7
No. 2015AP1989
II. STANDARD OF REVIEW
¶16 In cases involving administrative agencies we review
the decision of the agency. Estate of Szleszinski v. LIRC, 2007
WI 106, ¶22, 304 Wis. 2d 258, 736 N.W.2d 111. The court has, at
times, deferred to an agency's interpretation of a statute.
Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 659, 539 N.W.2d 98
(1995). But we need not address the issue of deference here
because, based on its mistaken belief that Ms. Flug had suffered
no compensable injury at all, the Commission did not answer the
question presented for our review. Thus, as is our tradition
with questions of law, we review the meaning of Wis. Stat.
§ 102.42(1m) de novo.5
¶17 The Commission's findings of fact, however, are
normally beyond question: "The findings of fact made by the
commission acting within its powers shall, in the absence of
fraud, be conclusive." Wis. Stat. § 102.23(1)(a)1. Ms. Flug
does not challenge the Commission's findings of fact here, so we
accept them as presented by the Commission.
5
Because we affirm the Commission's decision, the question
of deference is immaterial to the outcome of the case.
8
No. 2015AP1989
III. ANALYSIS
¶18 Whether Ms. Flug is entitled to compensation depends
on how Wis. Stat. § 102.42(1m) applies to her pre-existing
medical condition, her compensable injury, her treatment, and
her resulting disability. The statute provides the following:
Liability for unnecessary treatment. If an employee
who has sustained a compensable injury undertakes in
good faith invasive treatment that is generally
medically acceptable, but that is unnecessary, the
employer shall pay disability indemnity for all
disability incurred as a result of that treatment.
Wis. Stat. § 102.42(1m). The parties agree Ms. Flug sustained a
compensable injury while working for Wal-Mart, she subsequently
underwent an invasive treatment, and she suffered a permanent
partial disability as a direct result of the treatment. They
disagree on what it means for a treatment to be "generally
medically acceptable, but . . . unnecessary."
A. The Terms of the Argument
¶19 The disagreement centers on the necessary
relationship, or lack thereof, between the treatment and the
employee's compensable injury. The Commission says an invasive
treatment is "unnecessary" within the meaning of this statute if
its purpose is to treat the compensable injury, but it fails to
cure the injury, or relieve its effects. If an employee
undergoes such a treatment in good faith, the Commission says,
this statute makes the employer liable for benefits when the
treatment causes a disability. The court of appeals, on the
other hand, concluded it does not matter whether the invasive
procedure was actually directed at a compensable injury, so long
9
No. 2015AP1989
as the employee had a good faith belief that it was. Flug, No.
2015AP1989, ¶32 ("[W]e conclude that, to establish good faith
under Wis. Stat. § 102.42(1m), an employee must show that he or
she reasonably believed the proposed treatment was both
necessary and the result of a compensable injury."). Thus, the
court of appeals held that this statute can make an employer
liable for benefits even when the injury and its treatment had
nothing to do with the workplace.
¶20 Contrary to what one might expect, Ms. Flug's argument
neither directly refutes the Commission's position, nor
champions the court of appeals' analysis.6 Whereas both the
Commission and the court of appeals base their competing
analyses on the shared understanding that Ms. Flug's surgery had
nothing to do with her compensable injury, Ms. Flug does not.7
Instead, she characterizes her dispute with the Commission as a
disagreement over the extent of benefits available for the
6
The extent of Ms. Flug's assessment of the court of
appeals' reasoning was to misinterpret it as rejecting a
requirement that the invasive procedure "was actually necessary
to treat her work injury." That is not what the court of
appeals said. What it said was that there need be no
relationship between the disability-causing treatment and a
compensable injury: "By arguing that an employee must show his
or her treatment was the result of a compensable injury, the
Commission reads an additional causation requirement into the
statute." Flug, No. 2015AP1989, ¶30.
7
To the extent this sentence refers to the Commission, it
is a characterization of its argument here——Justice Ann Walsh
Bradley misunderstands it as referring to the Commission's
decision under review. See Justice Ann Walsh Bradley's dissent,
¶129.
10
No. 2015AP1989
treatment of a compensable injury: "The key to the statute is
whether the injured employee undergoes surgery for a compensable
injury in good faith——here, reasonably believing, based on her
doctors' advice, that it was necessary to cure and relieve Flug
from the continuing symptoms that began with her work injury."
She says the relevant medical testimony establishes that "[t]he
surgery, undertaken for the injury, was 'reasonable and
necessary to cure and relieve' [her] from the effects of
cervical disability which began at work."
¶21 Out of the several cases Ms. Flug addressed in her
argument, there are two that provide particularly helpful
insight on the nature of her argument. The first is Spencer v.
LIRC, 55 Wis. 2d 525, 200 N.W.2d 611 (1972). Indeed, Ms. Flug
dedicated the bulk of her argument to the proposition that Wis.
Stat. § 102.42(1m) is, in the main, a codification of Spencer,
and that we can resolve this case by reprising that analysis
here.8 Spencer, as Ms. Flug acknowledges, concerned an
employer's liability for the harmful side-effects of a procedure
that unquestionably treated a compensable injury. There, we
said "[t]he employer is responsible for the consequences not
only of the injury, but the treatment" and we observed the
8
Ms. Flug introduced her argument with the assertion that
"[t]he holding in Spencer is the central focus of this case."
She said Wis. Stat. § 102.42(1m) is significant only in that it
limited Spencer to circumstances in which the disability-causing
treatment is invasive (whereas Spencer required payment of
benefits even when the procedure was non-invasive).
11
No. 2015AP1989
employer was liable because Mr. Spencer "now has a stiff knee
resulting from the original injury." Id. at 532.9 Ms. Flug says
§ 102.42(1m) maintains this understanding, and that "[e]mployers
remain liable for the good faith treatment an injured employee
receives for a compensable injury."
¶22 The second case providing insight on Ms. Flug's
argument is City of Wauwatosa v. LIRC, 110 Wis. 2d 298, 328
N.W.2d 882 (Ct. App. 1982). Her treatment of this case confirms
that she believes her dispute with the Commission is about the
extent of available benefits consequent upon treatment of a
compensable injury, not about whether benefits are available
when there is no relationship between the disability-causing
treatment and her compensable injury. The City of Wauwatosa
court denied benefits because there was no connection between
the employee's treatment and his compensable injury. The court
concluded that "the Spencer rationale applies only to cases
involving treatment for an undisputed compensable industrial
injury." Id. at 301. In a particularly revealing passage in
Ms. Flug's brief, she said this case "is not helpful in our
9
There was an obvious, and direct, line of causation that
started with the workplace injury and ended with the stiff knee.
The "treatment" to which we referred in the Spencer v. LIRC, 55
Wis. 2d 525, 200 N.W.2d 611 (1972), quote was not just any
treatment, it was treatment of the compensable injury. And it
was the treatment of the compensable injury that ended in a
stiff knee. This relationship is as important to our analysis
of Wis. Stat. § 102.42(1m) as it was in Spencer.
12
No. 2015AP1989
analysis because it doesn't address the extent of treatment
undertaken, in good faith, for a compensable injury."
¶23 Thus, Ms. Flug's argument assumes her surgery was, in
fact, "for" the compensable injury, and that the real
controversy is over how much treatment was necessary to relieve
her of the symptoms caused by that injury.10 Ms. Flug's
assumption, however, is not warranted. The ALJ and the
Commission found——as a factual matter——that the surgery didn't
treat Ms. Flug's compensable injury.11 Thus, because the
Commission eliminated the factual predicate for Ms. Flug's
argument, we would not be able to engage it unless we first
rejected the Commission's findings on this point. Ms. Flug does
not assert the findings of fact are the result of fraud, or that
the Commission acted outside of its powers, so the findings are
10
This is a continuation of the argument Ms. Flug made in
the court of appeals, where she unequivocally stated she
"sustained a compensable injury and . . . underwent surgery for
a compensable injury." Ms. Flug maintained this position even
through oral argument here. Her counsel was asked to
acknowledge the surgery was not necessary to treat her
compensable injury, but he elected not to concede the point.
11
Although Ms. Flug's "good faith" belief about the
necessity of the back surgery is important, as we discuss below,
it cannot change the objective fact that the treatment had
nothing to do with her compensable injury.
13
No. 2015AP1989
conclusive.12 And that puts Ms. Flug's argument beyond our
reach.
¶24 Justice Ann Walsh Bradley experienced some difficulty
with this. She says there is a "procedural morass" in this case
that stymies her ability to assess the ALJ and Commission's
factual findings. Justice Ann Walsh Bradley's dissent, ¶¶107-
10. The relevant facts, however, are just not that complicated.
For purposes of this analysis, we must know whether the ALJ and
the Commission believed the surgery addressed Ms. Flug's
compensable injury, or instead her pre-existing condition. The
ALJ found no injury beyond that for which Wal-Mart had already
12
Justice Ann Walsh Bradley says Ms. Flug did challenge the
findings of fact here. Although Ms. Flug may have done so
before the circuit court and court of appeals, she did no such
thing here. Justice Bradley finds a factual challenge in Ms.
Flug's argument that she acted in good faith in obtaining the
surgery. See Justice Ann Walsh Bradley's dissent, ¶123. But
that was Ms. Flug's argument about the law; it was not a
challenge to the Commission's findings of fact. Ms. Flug based
her argument on the assumption that the surgery treated her
compensable injury. An assumption, however, is neither an
argument nor a challenge. A challenge to the Commission's
factual findings would involve marshalling the facts supporting
her argument, juxtaposing them against the facts supporting the
Commission/ALJ's findings, and then demonstrating the credible
and substantial evidence does not support the Commission's
decision. That effort is wholly absent from Ms. Flug's argument
here.
So Justice Bradley bobbles twice. First, she confounds
legal and factual challenges. And second, she promotes
assumptions to arguments. We will neither distort nor re-write
Ms. Flug's brief to make it say something it clearly does not.
14
No. 2015AP1989
compensated Ms. Flug. He said there was "a legitimate doubt as
to the compensability of the claim as a traumatic injury beyond
that already conceded and paid by the respondents." Flug v.
Wal-Mart Assocs. Inc., No.2013-006010, at 4 (LIRC Apr. 30, 2014)
(Sass, ALJ). The ALJ also rejected the argument that her
workplace activity caused the injury the surgery treated. Id.
("While Dr. Floren also reported the appreciable workplace
exposure was causative, this was not developed at hearing
particularly given the inconsistency in history of
injury . . . ."). There were only two medical conditions at
issue, and if the workplace activity did not cause the injury
the surgery treated, then by process of elimination we can
confidently conclude that the surgery treated Ms. Flug's pre-
existing condition. This is also the Commission's
determination: "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." Flug v. Wal-Mart Assocs., Inc., WDC
No. 201300610 (LIRC Feb. 23, 2015). If there is a procedural
morass here, it's not bad enough to keep us from doing our
duty.13
13
Justice Ann Walsh Bradley also accuses us of getting the
facts wrong. See Justice Ann Walsh Bradley's dissent, ¶¶125-30.
She disagrees, in particular, with our statement that Ms. Flug
believed the surgery was treating her soft-tissue strain. She
bases this assertion, apparently, on an argument she created for
Ms. Flug ex nihilo——that the work injury exacerbated her pre-
existing condition beyond its normal progression, and that the
surgery was necessary to treat that exacerbated condition.
Maybe Ms. Flug's counsel should have adopted Justice Bradley's
litigation strategy. But he didn't——perhaps because the ALJ and
(continued)
15
No. 2015AP1989
B. What it Means to be "Unnecessary"
¶25 Still, we must determine what it means for a treatment
to be "unnecessary" within the meaning of Wis. Stat.
§ 102.42(1m) so that we can determine whether the Commission
properly denied Ms. Flug's application for benefits.14 We begin
with the statutory language. State ex rel. Kalal v. Cir. Ct.
for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
("[S]tatutory interpretation 'begins with the language of the
statute. If the meaning of the statute is plain, we ordinarily
stop the inquiry.'" (quoting Seider v. O'Connell, 2000 WI 76,
¶43, 236 Wis. 2d 211, 232, 612 N.W.2d 659)). We understand the
language "in the context in which it is used; not in isolation
but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Id., ¶46. When this
process produces a plain, clear meaning, we go no further. Id.
¶26 The statute we are considering is part of Wisconsin's
comprehensive Worker's Compensation program. This is "a
legislatively enacted compromise designed to bring employers and
employees together in a mutually beneficial scheme of
Commission had already determined there was insufficient
evidence to conclude this had occurred, and he had chosen not to
challenge the factual findings before this court.
14
Although we are reviewing the Commission's decision, not
that of the court of appeals, we refer to the court of appeal's
reasoning to assist us in determining the proper interpretation
of this statute.
16
No. 2015AP1989
guaranteeing benefits in the event of work-related injury [or]
disease." Nelson v. Rothering, 174 Wis. 2d 296, 302, 496
N.W.2d 87 (1993). It "provides a broadly applicable method for
compensating persons who suffer work-related physical and mental
injuries." Byers v. LIRC, 208 Wis. 2d 388, 395, 561 N.W.2d 678
(1997). By relieving employers from tort liability, the
Worker's Compensation program "mak[es] employers strictly liable
for injuries encompassed within the Act, but limit[s] the
liability to compensation established by the statute." Id.
These limits are important because the program is not supposed
to be "a blanket insurance policy to provide benefits for
disabilities which may become manifest while on the job but are
in no way caused by or related to the employment." Lewellyn v.
Indus. Comm'n, 38 Wis. 2d 43, 61, 155 N.W.2d 678 (1968). It
serves an important, but limited, purpose: "It was never
intended to make the Workmen's Compensation Law an accident
insurance or health insurance measure." Id. (quoting Newman v.
Indus. Comm'n, 203 Wis. 358, 360, 234 N.W. 495 (1931)).
¶27 Compensation under the Worker's Compensation program
is available only when the employee satisfies the statutorily-
defined eligibility requirements. Broadly speaking, an employee
is eligible for compensation under this program if he sustains
an injury that arises out of his employment. See Wis. Stat.
§ 102.03(1). Upon the occurrence of such an injury, the
employer is responsible for supplying "such medical, surgical,
chiropractic, psychological, podiatric, dental, and hospital
treatment . . . as may be reasonably required to cure and
17
No. 2015AP1989
relieve from the effects of the injury . . . ." Wis. Stat.
§ 102.42(1). An employer must also pay the employee benefits
"if the injury causes disability." Wis. Stat. § 102.43. Thus,
in the general scheme of the program, medical expenses and
disability benefits are payable only when they are attributable
to a qualifying injury.
¶28 This context informs our inquiry into the meaning of
Wis. Stat. § 102.42(1m), the nucleus of which says that "[i]f an
employee who has sustained a compensable injury undertakes in
good faith invasive treatment that is generally medically
acceptable, but that is unnecessary, the employer shall pay
disability indemnity for all disability incurred as a result of
that treatment." As we described above, we must discern the
statutory relationship between Ms. Flug's pre-existing
condition, her work-related injury, her surgery, and her partial
permanent disability.
¶29 There are two logical ways of reading a statutory
provision like Wis. Stat. § 102.42(1m). One can read it as a
sentence (as it was written), paying attention to rules of
grammar, syntax, and diction to tease out its meaning. Or one
might dice it up into its constituent parts and treat each
resulting element as an independent requirement that neither
qualifies nor is qualified by the others. The court of appeals
favored the second approach. It said Ms. Flug is entitled to
disability benefits if she meets five distinct elements, which
it defined as follows:
18
No. 2015AP1989
(1) the employee sustained a compensable injury;
(2) he or she undertook invasive medical treatment;
(3) the treatment was undertaken in good faith;
(4) the treatment was generally medically acceptable,
but unnecessary; and
(5) the employee incurred a disability as a result of
the treatment.
Flug, No. 2015AP1989, ¶30. This, of course, is not what the
legislature wrote. It is simply how the court of appeals chose
to frame its analysis. While this is a legitimate method of
approaching statutory language, it does present peculiar risks.
When translating a sentence into discrete elements, it is easy
to lose critical information by neglecting to propagate the
proper relationship between the parts of the sentence into the
list. And that is what happened here.
¶30 Careful examination of the elements above reveal that
the court of appeals maintained the relationship between the
"treatment" and other parts of the sentence in elements three
through five. But in the first two elements, the court of
appeals set up "compensable injury" and "treatment" as having
nothing to do with each other. This relegated the "compensable
injury" provision to a mere gatekeeper role that, once
satisfied, could be ignored for the balance of the analysis.
Consequently, the court of appeals' translation was outcome-
determinative.15 That is to say, the court inadvertently baked
the outcome into the structure it created for the analysis——it
assumed there need be no relationship between the compensable
15
As is Chief Justice Roggensack's dissent. Chief Justice
Roggensack's dissent, ¶87.
19
No. 2015AP1989
injury and the treatment. So when the Commission asserted a
necessary link between the two, the court of appeals criticized
the argument as "read[ing] an additional causation requirement
into the statute." It did not say why the Commission's posited
relationship between the treatment and the compensable injury
was inapposite, as a textual matter, other than by referring to
how it had diced the statutory language. It is true that the
Commission's asserted relationship finds no reflection in the
court of appeals' analytical construct, but that is a fault only
if the court of appeals accurately translated the statute into a
list of elements. That is the question we must now answer.
¶31 Instead of separating the statute into separate
elements, we will analyze the sentence as written, using our
standard toolbox to help us derive its meaning. The court of
appeals properly recognized the centrality of "treatment" to the
meaning of the statute——the term appears in four of the five
elements it culled from the statutory language. So some
attention to the dictional provenance of this term will help us
determine its proper place and function in the statute.
"Treatment" is the nominal form of the verb "to treat."
"Treat," of course, is a transitive verb, which means it
requires a direct object on which to act. That is, one does not
simply "treat," one treats something——a person, a condition, a
disease, etc. Nominalizing the verb doesn't remove its
transitive property: "Treatment" is the "[a]dministration or
20
No. 2015AP1989
application of remedies to a patient or for a disease or an
injury; medicinal or surgical management; therapy."16 Regardless
of whether the word takes its nominal or verbal form, it must
still be understood as operating on something.
¶32 With that understanding of this central term, we can
now let the rules of grammar direct our understanding of Wis.
Stat. § 102.42(1m). Our first goal is discovering the objective
of the "treatment." We begin with the part of the statute that
says "[i]f an employee who has sustained a compensable injury
undertakes . . . invasive treatment . . . ." Without
considering more of the statute, "treatment" could operate on
one of two possible objects——the employee, or the compensable
injury. It is plausible, both textually and logically, that the
employee could be the object of the term "treatment." The
phrase "who has sustained a compensable injury" could be
understood as simply identifying the employee who undertook the
treatment, leaving "employee" as the only possible object of the
"treatment."17
¶33 There are, however, more qualifications to the term
"treatment," and they prevent the employee from serving as the
object. The statutory language, with the qualifiers included,
16
Treatment, The American Heritage Dictionary of The
English Language (3d ed. 1992) (emphases added).
17
If a treatment treats the "employee," then the object of
the treatment comprises any malady from which the employee might
suffer. In this case, that would include Ms. Flug's non-
compensable degenerative disc disease.
21
No. 2015AP1989
says this: "If an employee who has sustained a compensable
injury undertakes . . . invasive treatment that is generally
medically acceptable, but that is unnecessary . . . ." The
requirement that the treatment be "generally medically
acceptable," on its own, could direct us with equal ease to
either the employee or the compensable injury, and so it
provides no help in identifying the object on which it is to
operate; we will return to it later. The phrase "but that is
unnecessary," on the other hand, tells us that the object of the
treatment must be the compensable injury.
¶34 Ms. Flug tells us she fits within the statute because
the treatment——her surgery——was unnecessary. But unnecessary to
what? If the object of the treatment is the employee (as
opposed to the compensable injury), then it wasn't unnecessary
at all. In fact, it was quite the opposite. Ms. Flug herself
reported that the treatment brought her back to nearly 100
percent. Neither Ms. Flug nor the court of appeals has
explained how a treatment can be that effective while
simultaneously being unnecessary. If, on the other hand, the
statute makes the object of the treatment the compensable
injury, then one must determine whether the treatment was
directed——as a factual matter——at that particular injury.
Either way, Ms. Flug's claim must end here. If the object of
"treatment" is the employee, Ms. Flug cannot succeed because the
treatment was clearly necessary——it cured her condition. If,
instead, the object of "treatment" is the compensable injury,
she can proceed no further because the Commission has already
22
No. 2015AP1989
found (and we must accept) that the object of Ms. Flug's surgery
was not her compensable injury.18
¶35 The only way to reach the court of appeals' conclusion
would be to allow the object of the treatment to flicker between
the employee and the compensable injury, depending on whether we
are considering (a) what the treatment was treating, or (b) the
treatment's necessity. The court of appeals' formulation would
make Ms. Flug the object of "treatment" when considering what
the surgery was treating, but flit to the compensable injury in
assessing its necessity. Only if such grammatical instability
is possible may one conclude that the treatment was treating Ms.
Flug, but was unnecessary because it was not treating the
compensable injury. However, there is no grammatical rule that
allows the object of the treatment to flicker like that.
¶36 We return now to the requirement that the treatment in
question be "generally medically acceptable." Because the
phrases "generally medically acceptable" and "but that is
unnecessary" both act as delimiters on the term "treatment," the
treatment must partake of both qualities. And because we have
already concluded that the proper object of "treatment" is the
18
Chief Justice Roggensack faults us for eliding "good
faith" from this part of our analysis. Chief Justice
Roggensack's dissent, ¶85. We do so because our task at this
stage is to discover what the "treatment" is supposed to be
treating. The employee's "good faith" in accepting the
treatment provides no information useful to that inquiry. Ms.
Flug's subjective beliefs cannot affect the statute's grammar,
regardless of the sincerity with which they are held.
23
No. 2015AP1989
compensable injury, we must also conclude that the treatments
contemplated by the statute are those that are generally
medically acceptable as a treatment of the compensable injury.
¶37 The statute has one further requirement, which we have
not yet addressed——"good faith." And although it does not budge
"compensable injury" from its place as the object of
"treatment," it is important to a complete understanding of how
the statute functions. The portion of Wis. Stat. § 102.42(1m)
that describes eligibility for benefits says, in full: "If an
employee who has sustained a compensable injury undertakes in
good faith invasive treatment that is generally medically
acceptable, but that is unnecessary . . . ." This provision
exists against the backdrop of a Worker's Compensation program
that requires payment of medical expenses only to the extent
they are "reasonably required" to "cure and relieve from the
effects of the [compensable] injury,"19 and disability benefits
only for incapacities caused by a work-related injury.20 An
unnecessary medical treatment is not "reasonably required" to
treat the compensable injury. And a disability caused by a
treatment is not a disability caused by an injury. It is here
that § 102.42(1m) intervenes, requiring disability benefits when
a treatment for a compensable injury that turns out to not be
reasonably required (that is, unnecessary) causes a disability.
19
Wis. Stat. § 102.42(1).
20
Wis. Stat. § 102.43.
24
No. 2015AP1989
Without this, there would be no statutory liability for such an
event. So § 102.42(1m) extended the employer's statutory
liability, and the "good faith" requirement acts as a limit on
that extension. If the disability-creating treatment turns out
not to have been necessary to treat her compensable injury, she
still receives disability benefits so long as she undertook the
treatment in good faith. We need not explore this concept
further because we have already concluded Ms. Flug's treatment
does not qualify under the statute's extension of liability.21
C. Consistency
¶38 Ms. Flug says Wis. Stat. § 102.42(1m) codified Spencer
(but for one aspect not relevant here), and all parties urge us
to apply that statute consistently with cases decided before its
adoption. This opinion fits neatly into our canon.
¶39 Spencer addressed itself to an employee who injured
his knee while on the job; everyone agreed he was entitled to
compensation. Mr. Spencer had his kneecap removed, but he
continued to suffer. He sought the advice of a different
21
In light of our holding that this statute extends
liability only to treatments that are directed at a compensable
injury, Chief Justice Roggensack asks this eminently reasonable
question: "What then of the context in which an employee who in
good faith believed that the invasive treatment she undertook
would treat her compensable injury?" Perhaps employees in such
circumstances ought to receive benefits, but they must direct
their petition for relief to the legislature——not the court. We
can only apply the law as the legislature created it. The
statute, as it currently exists, extends liability based on the
reality of what the treatment addresses, not the employee's
belief about what it addresses.
25
No. 2015AP1989
doctor, who recommended an arthrodesis.22 His original doctor
disagreed, saying such a procedure would not be reasonably
necessary. Nonetheless, Mr. Spencer opted for the arthrodesis,
which left him with a stiff leg. The administrative agency
found the arthrodesis was not reasonably necessary, and so
rejected payment of expenses related to that procedure.
Spencer, 55 Wis. 2d at 527–28. The circuit court set aside the
agency's decision, ruling that "where an employee, in good
faith, accepts the recommendation of treatment of one doctor,
with whom another doctor disagrees, the commission cannot
disregard the consequences of treatment (increased period of
temporary total disability, increased permanent partial
disability and the expense of the arthrodesis) because they find
the treatment was either unnecessary or unreasonable." Id. at
532. We agreed with the circuit court, and held that "[t]he
employer is responsible for the consequences not only of the
injury, but the treatment." Id. Although not explicit, our
juxtaposition of "injury" and "treatment" in that sentence can
lead to no conclusion but that the treatment we were considering
was for the compensable injury. Because we conclude today that
the "treatment" identified in Wis. Stat. § 102.42(1m) must treat
the compensable injury to qualify for benefits, our holding is
consistent with what we said in Spencer.
22
Arthrodesis is "[t]he stiffening of a joint by operative
means." Arthrodesis, Stedman's Medical Dictionary (28th ed.
2006).
26
No. 2015AP1989
¶40 The court of appeals subsequently considered an
injured employee's situation that closely tracks that of Ms.
Flug in City of Wauwatosa v. LIRC, 110 Wis. 2d 298, 328
N.W.2d 882 (Ct. App. 1982). There, a police officer had slipped
off a curb while on duty, and incurred a compensable hip injury.
Id. at 299. The officer's treating doctor diagnosed him as also
having a pre-existing hip condition that his work-related
accident aggravated, and recommended surgery. The insurance
carrier's doctor disagreed, opining that the fall "had not
aggravated nor accelerated the preexisting [] condition, but
merely brought the condition to the attention of the surgeon."
Id. The hearing examiner resolved the disputed testimony
against the officer, finding no aggravation. The Commission
disagreed, and so awarded benefits related to the surgery for
the pre-existing, but aggravated, hip injury. Id. at 300. The
circuit court affirmed, citing Spencer. The court of appeals
acknowledged that the key question was whether Spencer
controlled, but concluded that our holding in that case "applies
only to cases involving treatment for an undisputed compensable
industrial injury." Id. at 301. The court of appeals was
correct, and its conclusion is reflected in our holding here.
¶41 Finally, we consider Honthaners Restaurants, Inc. v.
LIRC, 2000 WI App 273, 240 Wis. 2d 234, 621 N.W.2d 660. An
employee suffered a compensable injury to her arm, and received
disability benefits for just under six months as well as accrued
medical expenses during that period. Id., ¶3. She subsequently
sought benefits for an additional year of treatment. The
27
No. 2015AP1989
Commission found that she had been "overdiagnosed and over-
treated," because she continued to receive treatments long after
her compensable injury had resolved. However, because she had
sought the extended treatment in "good faith," the Commission
said she was entitled to continued benefits. Id., ¶7. Agreeing
with the Commission, the court of appeals said "Spencer teaches
that as long as the claimant engaged in the unnecessary and
unreasonable treatment in good faith, the employer is
responsible for payment." Id., ¶15. It distinguished Spencer
and City of Wauwatosa on the basis that "[i]n Spencer, the
parties disputed medical treatment, not cause." Id., ¶21. The
court of appeals concluded that the Spencer rule applied because
the treatment the employee received was directed at her
compensable injury, even though it turned out not to have been
necessary. Comparing the employee's situation to Spencer, the
Honthaners Restaurant court said:
Both cases involve no dispute that the claimants
suffered a compensable injury. Both deal with
differing medical opinions on diagnosis and treatment.
Both cases have a claimant who continued the
unnecessary treatment in good faith. Thus, we conclude
the Commission properly relied on Spencer and [the
employee] is entitled to additional benefits.
Id., ¶22. That conclusion is consistent with our holding today,
which requires that the treatment in question was directed at
the compensable injury.
* * *
¶42 Our opinion today tracks the language of Wis. Stat.
§ 102.42(1m) and is consistent with prior opinions delivered by
28
No. 2015AP1989
the courts of this state. It is also consistent with the nature
of Wisconsin's Worker's Compensation system. Indeed, any other
conclusion would represent a sharp break with the "legislatively
enacted compromise" between employers and employees for the
payment of expenses and benefits consequent upon "work-related
injury [or] disease." Nelson, 174 Wis. 2d at 302. And it would
represent a significant step towards making the Worker's
Compensation system "a blanket insurance policy to provide
benefits for disabilities which may become manifest while on the
job but are in no way caused by or related to the employment."
Lewellyn, 38 Wis. 2d at 61. There is nothing in the text of
Wis. Stat. § 102.42(1m) to suggest such a momentous change, and
even if that change is warranted, we are not the proper branch
of government to prescribe it. Thus, we will not adopt an
understanding of this statute that would extend employer
liability to injuries and diseases that have nothing to do with
the workplace.23
23
The court of appeals, Ms. Flug, and the Chief Justice
discuss whether the compensable injury must "cause" a treatment
to qualify for benefits——a proposition they all reject. See,
e.g., Chief Justice Roggensack's dissent, ¶¶85-87, 90. It is
difficult to know what to do with this construct (which finds no
place in the statutory language) because injuries, of course, do
not "cause" treatments. They certainly need them. And they
frequently won't cure without them. But if treatments are
caused by anything, they are caused by those skilled in the
healing arts. In any event, nothing in this opinion should be
construed as requiring that a compensable injury "cause" a
treatment. Our opinion is simply that a qualifying treatment is
one that treats a compensable injury.
29
No. 2015AP1989
IV. CONCLUSION
¶43 We hold today that an employee is not eligible for
benefits under Wis. Stat. § 102.42(1m) if the disability-causing
treatment was directed at treating something other than the
employee's compensable injury. Because Ms. Flug's surgery
treated her pre-existing condition, not her compensable injury,
her claim must be disallowed. We reverse the court of appeals
because it should have affirmed the Commission's decision.
By the Court.—The decision of the court of appeals is
reversed and the case is dismissed.
30
No. 2015AP1989.pdr
¶44 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). This
review arises from an unpublished decision of the court of
appeals1 reversing the circuit court's decision, which affirmed
the Labor and Industry Review Commission's (LIRC) order denying
Tracie Flug (Flug) disability benefits under Wis. Stat.
§ 102.42(1m).
¶45 I conclude that Flug, who has sustained a compensable
(work-related) injury from which began a continuing course of
pain and who underwent surgery upon the advice of her medical
doctor to alleviate that pain, is entitled to compensation
pursuant to Wis. Stat. § 102.42(1m) if she accepted the
physician's advice and undertook surgery with the good faith
belief that surgery would treat her work-related injury, even
though surgery was unnecessary treatment for that injury.
Neither LIRC nor the Administrative Law Judge (ALJ) made factual
findings in regard to Flug's good faith belief, or the lack
thereof, in undertaking surgery. Therefore, I would remand the
matter to LIRC to make the requisite finding and complete its
obligations under § 102.42(1m).
¶46 Accordingly, I would affirm the court of appeals'
decision reversing LIRC and remanding the matter for additional
fact-finding on the issue of good faith, and if necessary for a
determination of the damages to which Flug is entitled. Because
the majority opinion fails to recognize the factual nature of
1
Flug v. LIRC, No. 2015AP1989, unpublished slip op. (Wis.
Ct. App. June 21, 2016).
1
No. 2015AP1989.pdr
good faith, its importance to the plain meaning of Wis. Stat.
§ 102.42(1m) and avoids addressing good faith in the context in
which it arises, I respectfully dissent from the majority
opinion.
I. BACKGROUND
¶47 The majority opinion ably sets forth the underlying
facts. Therefore, I shall relate only those facts necessary to
attune the reader to the discussion that follows.
¶48 On February 14, 2013, while engaged in work for Wal-
Mart, Flug felt a sudden pain in her neck that radiated down her
right arm. She had not experienced pain before this incident.
Because the pain continued, on February 20, 2013, she sought
medical treatment from Dr. Sabina Morissette. Dr. Morissette
diagnosed Flug with "[r]ight arm and shoulder strain with
possible relation to the cervical spine itself." Dr. Morissette
released Flug back to work, with restrictions on the tasks she
could perform.
¶49 Because the pain continued, on February 25, 2013, Flug
sought physical therapy from Debra Stow. Stow's records show:
[Flug] presents with the diagnosis of right shoulder
pain. Patient stated that on Thursday, February 14
she started work without any pain . . . . When she
woke up Friday morning she had a lot of really intense
pain and had to leave work early. . . . [T]he pain
starts in her neck and goes down the back portion of
her shoulder down into her arm.
¶50 On March 6, 2013, Flug saw Dr. Andrew Floren.
Dr. Floren noted that Flug "was doing a good deal of overhead
work scanning some boxes in the Shoes Department. She developed
2
No. 2015AP1989.pdr
a severe sudden pain in her right upper back area. This pain
went down the posterior shoulder and arm to the wrists." On
March 22, 2013, Floren's notes indicate that Flug's neck and
back were slowly getting better, but the pain in her shoulder
was not improving. In addition, she had begun to have numbness
in her right hand and fingers.
¶51 On April 2, 2013, Flug had a follow-up appointment
with Dr. Floren and said that her pain was not improving.
Floren recommended a steroid injection, which Flug had.
However, it did not alleviate her pain.
¶52 Because of the continuing pain, on May 2, 2013, Floren
referred Flug to Dr. Eduardo Perez, a neurosurgeon. Dr. Perez
recommended surgery to alleviate her pain. Specifically,
Dr. Perez recommended Flug undergo an "anterior cervical
dis[c]ectomy with fusion/fixation at the C5-C6, C6-C7 levels."
Dr. Perez stated: "given time and overall severity of the
symptoms and the lack of response to nonsurgical management make
[Flug] a surgical candidate."
¶53 On June 4, 2013, Dr. Perez performed a discectomy. At
a follow-up approximately one month after the surgery, Flug told
Dr. Perez that she was "doing excellent" and almost back to full
health. Dr. Floren allowed Flug to return to work on July 17,
2013, but gave her a twenty-pound lifting restriction.
Eventually, that restriction was increased to thirty-pounds
before being eliminated entirely in November 2013.
¶54 Initially, Wal-Mart paid Flug worker's compensation
disability benefits. However, subsequent to Flug's surgery,
3
No. 2015AP1989.pdr
Wal-Mart retained its own physician, Dr. Morris Soriano, to
conduct an independent review of Flug's medical records.
Dr. Soriano concluded that the surgery was not necessary to
treat Flug's work-related injury. Based on these findings, Wal-
Mart notified Flug that it was terminating her disability
benefits as of June 22, 2013.
¶55 On August 16, 2013, Flug filed a worker's compensation
claim against Wal-Mart with the Department of Workforce
Development. Flug sought disability benefits through August 8,
2013, including benefits related to the surgery, as well as 22%
permanent partial disability benefits and medical expenses.
¶56 Flug submitted a "Practitioner's Report on Accident or
Industrial Disease in Lieu of Testimony" signed by Dr. Floren.
Dr. Floren opined that given the sudden onset of Flug's symptoms
while at work, it was "medically probable" that the work-related
injury caused a cervical disability, which required the
recommended surgery to eliminate her pain. In contrast,
Dr. Soriano opined that Flug's discectomy was "not reasonable,
necessary or related to the injury of February 14, 2013." Flug
did not have Dr. Soriano's opinion prior to undertaking surgery.
¶57 Flug was the only witness to testify in-person at the
hearing. She testified that she felt a "[p]ain, instant pain,
just shooting down from my neck down into my shoulder and into
my arm" while scanning a box above her head. She further
testified that she believed all of the medical treatment she
subsequently received was necessary to relieve the continuing
pain she sustained due to the work-related injury.
4
No. 2015AP1989.pdr
¶58 The ALJ reasoned that the medical history provided by
Flug to Dr. Floren was inconsistent, and therefore, the ALJ
discounted his testimony. As a result, the ALJ denied Flug's
application for disability benefits.
¶59 LIRC adopted the factual findings of the ALJ.
However, contrary to what the ALJ had found, LIRC then concluded
that Wis. Stat. § 102.42(1m) did not apply to Flug's claims
because she had not suffered a compensable work-related injury.
The circuit court affirmed LIRC.
¶60 Before the court of appeals, LIRC argued that Wis.
Stat. § 102.42(1m) requires a causal link between an employee's
compensable injury and his or her invasive treatment. The court
of appeals reasoned that LIRC, by requiring "that an employee
must show his or her treatment was the result of a compensable
injury, the Commission reads an additional causation requirement
into the statute."2 Therefore, the court of appeals concluded
that LIRC's interpretation of the statute was unreasonable. We
granted review. I would affirm the court of appeals.
II. DISCUSSION
A. Standard of Review
¶61 "When reviewing a worker's compensation claim, we
review LIRC's decision, not the decisions of the circuit court
or court of appeals." DeBoer Transp., Inc. v. Swenson, 2011 WI
2
Flug v. LIRC, No. 2015AP1989, unpublished slip op. (Wis.
Ct. App. June 21, 2016).
5
No. 2015AP1989.pdr
64, ¶29, 335 Wis. 2d 599, 804 N.W.2d 658 (citing Cty. of Dane v.
LIRC, 2009 WI 9, ¶14, 315 Wis. 2d 293, 759 N.W.2d 571).
¶62 This appeal turns on the interpretation of Wis. Stat.
§ 102.42(1m). The interpretation of a statute presents a
question of law that we generally review independently. Cty. of
Dane, 315 Wis. 2d 293, ¶14 (citing Watton v. Hegerty, 2008 WI
74, ¶6, 311 Wis. 2d 52, 751 N.W.2d 369).
¶63 There are times when an agency's interpretation of a
statute is entitled to deference. Id. (citing Clean Wis., Inc.
v. Pub. Serv. Comm'n of Wis., 2005 WI 93, ¶37, 282 Wis. 2d 250,
700 N.W.2d 768). However, in the present case, LIRC did not
interpret Wis. Stat. § 102.42(1m). Instead of construing the
statute, LIRC said that Flug "failed to present credible medical
evidence to establish that she suffered a work-related injury
because the history upon which Dr. Floren relied when making his
determination as to whether the incident on February 14, 2013,
resulted in a work injury was incorrect."3 Accordingly, there is
no statutory interpretation by LIRC to which deferral could
apply.
¶64 Except in very limited circumstances not present in
the case now before us, we accept LIRC's factual findings as
conclusive. Wis. Stat. § 102.23(1)(a)1. However, neither LIRC
nor the ALJ made a factual finding in regard to whether Flug had
3
Tracie Flug v. Wal-Mart Assoc., Inc., ERD No. 2013-006010
(LIRC, Feb. 23, 2015).
6
No. 2015AP1989.pdr
a good faith belief that surgery would treat her work-related
injury.
¶65 Accordingly, I interpret and apply Wis. Stat.
§ 102.42(1m) under well-established principles of statutory
interpretation. And, as did the court of appeals, I make no
factual findings, but refer the lack of a finding in regard to
whether Flug had a good faith belief that undertaking surgery
would treat her work-related injury to LIRC so that it can
complete its obligations under § 102.42(1m).
B. Statutory Interpretation, General Principles
¶66 "It is, of course, a solemn obligation of the
judiciary to faithfully give effect to the laws enacted by the
legislature, and to do so requires a determination of statutory
meaning." State ex rel. Kalal v. Circuit Court for Dane Cty.,
2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. For this
reason, "statutory interpretation 'begins with the language of
the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry.'" Id., ¶45 (quoting Seider v.
O'Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659).
"Statutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or
phrases are given their technical or special definitional
meaning." Id. (citing Bruno v. Milwaukee Cty., 2003 WI 28, ¶¶8,
20, 260 Wis. 2d 633, 660 N.W.2d 656).
¶67 Additionally, "[c]ontext is important to meaning."
Id., ¶46. As a result, "statutory language is interpreted in
the context in which it is used; not in isolation but as part of
7
No. 2015AP1989.pdr
a whole; in relation to the language of surrounding or closely-
related statutes; and reasonably, to avoid absurd or
unreasonable results." Id. And, if "statutory language is
unambiguous, there is no need to consult extrinsic sources of
interpretation, such as legislative history." Id. (citing
Bruno, 260 Wis. 2d 633, ¶7).
¶68 It is under these principles that I interpret Wis.
Stat. § 102.42(1m).
C. Interpretation of Wis. Stat. § 102.42(1m)
¶69 "A purpose of the worker's compensation statute is to
'provide prompt justice for injured workers and to prevent, as
far as possible, the delays that might arise from protracted
litigation.'" Cty. of Dane, 315 Wis. 2d 293, ¶34 (quoting Bosco
v. LIRC, 2004 WI 77, ¶48, 272 Wis. 2d 586, 681 N.W.2d 157).
And, "an injured employee is guaranteed 'recovery irrespective
of his own fault and irrespective of the employer's absence of
fault.'" Id. (quoting Mulder v. Acme-Cleveland Corp., 95
Wis. 2d 173, 180, 290 N.W.2d 276 (1980)). "However, in exchange
for this guarantee, the employee is obliged to accept a limited
and scheduled compensation award." Id. (internal quotations
omitted). "As a result, the statute must be broadly construed
in order to best promote its statutory purposes." Id. (citation
omitted); see also Johnson v. Wis. Lumber & Supply Co., 2003
Wis. 304, 310, 234 N.W.2d 506 (1931) ("It has been said over and
over again in workmen's compensation cases that the act should
be liberally construed . . . .").
8
No. 2015AP1989.pdr
¶70 As part of Wisconsin's worker's compensation scheme,
employers4 are required to compensate employees for certain
injuries when "the employee is performing service growing out of
and incidental to his or her employment." Wis. Stat.
§ 102.03(1)(c)1. And, under Wis. Stat. § 102.42(1), an
"employer shall supply such medical, surgical, chiropractic,
psychological, podiatric, dental, and hospital treatment,
medicines, medical and surgical supplies, crutches, artificial
members, appliances, and training in the use of artificial
members and appliances . . . medicines, and medical supplies, as
may be reasonably required to cure and relieve from the effects
of the injury." § 102.42(1).
¶71 In addition to the obligation to pay certain medical
expenses, an employer also may be liable for disability
indemnity if an employee becomes disabled as a result of an
injury or treatment for the effects of an injury. Under certain
circumstances, the employer's obligation includes payment for
unnecessary, invasive medical treatment that causes an employee
to become disabled. See, e.g., Wis. Stat. § 102.42(1m).
¶72 Wisconsin Stat. § 102.42(1m) renders an employer
liable for disability indemnity when an employee undergoes
invasive treatment that is later discovered to have been
4
Employer is defined by Wis. Stat. § 102.04 and includes,
in relevant part, any "person who usually employs 3 or more
employees for services performed in this state, whether in one
or more trades, businesses, professions, or occupations, and
whether in one or more locations." Wis. Stat. § 102.04(1)(b)1.
9
No. 2015AP1989.pdr
unnecessary to treat the work-related injury. Section
102.42(1m) provides, in relevant part:
LIABILITY FOR UNNECESSARY TREATMENT. If an employee who has
sustained a compensable injury undertakes in good
faith invasive treatment that is generally medically
acceptable, but that is unnecessary, the employer
shall pay disability indemnity for all disability
incurred as a result of that treatment. An employer
is not liable for disability indemnity for any
disability incurred as a result of any unnecessary
treatment undertaken in good faith that is noninvasive
or not medically acceptable.
¶73 To receive disability indemnity from his or her
employer under Wis. Stat. § 102.42(1m), an employee must meet a
number of statutory criteria: (1) a compensable (work-related)
injury; (2) good faith in undertaking invasive medical
treatment; (3) medically acceptable treatment that is
unnecessary for the work-related injury; (4) disability incurred
because of the treatment. § 102.42(1m).
¶74 Here, LIRC does not dispute that Flug suffered a
compensable injury, even though it did so in the opinion we
review. "Injury" is defined by Wis. Stat. § 102.01(c), in
relevant part, as any "mental or physical harm to an employee
caused by accident or disease." And the types of injuries for
which an employer is liable are enumerated in Wis. Stat.
§ 102.03.
¶75 Good faith is the touchstone of a plain meaning
interpretation of Wis. Stat. § 102.42(1m). Stated more
completely, whether the employee undertakes invasive treatment
10
No. 2015AP1989.pdr
with the good faith belief that it would treat her work-related
injury is a central focus of § 102.42(1m).
¶76 Good faith is a state-of-mind question; accordingly,
whether one has acted in good faith is a question of fact.
Schmitz v. Firstar Bank of Milwaukee, 2003 WI 21, ¶34, 260
Wis. 2d 24, 658 N.W.2d 442 ("the question of whether Firstar
acted in good faith or in accordance with reasonable commercial
standards under Wis. Stat. § 403.419(3)(1993-94) was a question
of fact that would need to be tried"); Tang v. C.A.R.S.
Protection Plus, Inc., 2007 WI App 134, ¶41, 301 Wis. 2d 752,
734 N.W.2d 169 ("Whether a party to a contract has breached its
implied duty of good faith is a question of fact.").
¶77 Good faith is not defined in Wis. Stat. § 102.42.
Therefore, we apply its ordinary meaning such as may be found in
a dictionary. Kalal, 271 Wis. 2d 633, ¶53. The current version
of Black's Law Dictionary defines good faith, in part, as "[a]
state of mind consisting in . . . honesty in belief or purpose."
Good Faith, Black's Law Dictionary 808 (10th ed. 2014).
Accordingly, an employee must act with an honest "belief or
purpose" in order to act with good faith.
¶78 The legislature has tied the employee's good faith
obligation to the employee's undertaking invasive treatment
because good faith modifies the verb "undertakes" pursuant to
the plain meaning of the terms employed in Wis. Stat.
§ 102.42(1m). ("If an employee . . . undertakes in good faith
invasive treatment.")
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No. 2015AP1989.pdr
¶79 Moreover, the employee's treatment must be generally
medically acceptable, but unnecessary to treat a compensable
work-related injury. Wisconsin Stat. § 102.42(1m) does not
mandate that the treatment be unnecessary for any medical
reason; it requires only that it be unnecessary to treat a
compensable injury.
¶80 Finally, the employee must show that the invasive
treatment resulted in the employee's disability. This is the
only aspect of Wis. Stat. § 102.42(1m) that requires an employee
to show causation.
¶81 The terms of Wis. Stat. § 102.42(1m) must be read in
context. The obligation for the employee to act with a good
faith belief that the invasive treatment is treatment for her
work-related injury limits the employee's treatment choices and
in so doing, protects the employer. However, as long as an
employee acts with a good faith belief that undertaking
medically invasive treatment will treat her work-related injury,
the employer is liable for disability even when the treatment
was medically unnecessary to treat a work-related injury. This
good faith obligation protects employers from an employee
seeking medical treatment that the employee knows is unnecessary
to treat a compensable injury.
¶82 Importantly, all Wis. Stat. § 102.42(1m) requires is
that an employee act with a good faith belief that undertaking
invasive treatment is treatment for her work-related injury.
Nothing in the plain language of the statute can reasonably be
12
No. 2015AP1989.pdr
construed as requiring the employee to know that medical advice
for invasive treatment should not be taken.
¶83 Nevertheless, LIRC and the majority opinion5 contend
that the work-related injury must be medically connected to the
employee's invasive treatment that resulted in disability.
According to the majority opinion and LIRC, without that direct
connection, Wis. Stat. § 102.42(1m) does not apply. Their
narrow statutory interpretation gives the employee the burden to
know whether the medical treatment that was recommended by
treating physicians to alleviate on-going pain should be
accepted or rejected.
¶84 The majority opinion's statutory interpretation reads
good faith out of the statute in the context of the employee who
undertakes invasive, unnecessary treatment with a good faith
belief that the compensatory injury is being treated. For
example, the majority opinion repeatedly substitutes an ellipsis
for the words "good faith" when it quotes portions of the
statute, as it makes what it believes are winning statutory
constructs.6 Furthermore, when the majority opinion finally gets
around to addressing good faith it says, "If the disability-
creating treatment turns out not to have been necessary to treat
her compensable injury, she still receives disability benefits
5
Majority op. ¶¶32-33. The statute requires causation only
insofar as the invasive treatment must have caused the
disability.
6
See majority op., ¶¶31, 32.
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No. 2015AP1989.pdr
so long as she undertook the treatment in good faith."7 The
majority opinion then continues to avoid the central issue of
the employee's good faith by saying, "We need not explore this
concept further because we have already concluded Ms. Flug's
treatment does not qualify under the statute's extension of
liability."8 Is this because the majority opinion's reasoning
requires that the work-related injury caused the treatment? The
majority opinion would permit recovery under Wis. Stat.
§ 102.42(1m) only for invasive treatment directed solely at the
compensable injury. What then of the context in which an
employee who in good faith believed that the invasive treatment
she undertook would treat her compensable injury?
¶85 While the majority opinion's grammatical arguments are
interesting, they do not explain why the legislature did not
include a provision requiring the employee to show that the
work-related injury caused the treatment, if the legislature had
wanted to include that requirement. See Kalal, 271 Wis. 2d 633,
¶44 ("We assume that the legislature's intent is expressed in
the statutory language."); cf. Ott v. Peppertree Resort Villas,
Inc., 2006 WI App 77, ¶25 n.11, 292 Wis. 2d 173, 716 N.W.2d 127
("We are not permitted to re-write the statute, however, and we
conclude the difference in language the legislature chose to use
in the two subsections supports our conclusion that it did not
7
Majority op., ¶37.
8
Id.
14
No. 2015AP1989.pdr
intend to impose the causation-of-pecuniary-loss requirement on
private plaintiffs who bring a claim under [Wis. Stat.]
§ 707.57(1)."). It chose not to do so.
¶86 In addition, requiring an employee show the work-
related injury caused the invasive treatment would lead to
unreasonable results. See Kalal, 2004 WI 58, ¶46 (we interpret
statutes in such a way as "to avoid absurd or unreasonable
results"). It would force an employee to know, at the time of
an invasive treatment whether the invasive treatment she is
undertaking is to alleviate pain from a compensable injury or,
whether it would alleviate pain from a pre-existing injury or
both. But see Brown v. Dibbell, 227 Wis. 2d 28, 51, 595 N.W.2d
358 (1999) (reasoning, "a patient is not in a position to know
treatment options and risks and, if unaided, is unable to make
an informed decision").
¶87 We do not expect lay people to have knowledge of when
medical practices or procedures should be employed. See
generally Martin v. Richards, 192 Wis. 2d 156, 170, 531 N.W.2d
70 (1995) ("The average patient has little or no understanding
of the medical arts, and ordinarily has only his physician to
whom he can look for enlightenment with which to reach an
intelligent decision." (quoting Canterbury v. Spence, 464 F.2d
772, 780 (D.C. Cir. 1972))). For this reason, an interpretation
of Wis. Stat. § 102.42(1m) that presumes an employee is capable
of possessing such knowledge is unreasonable. Cf. Hanson v. Am.
Family Mut. Ins. Co., 2006 WI 97, ¶20, 294 Wis. 2d 149, 716
N.W.2d 866 (reasoning, "when a tortfeasor causes an injury to
15
No. 2015AP1989.pdr
another person who then undergoes unnecessary medical treatment
of those injuries despite having exercised ordinary care in
selecting her doctor, the tortfeasor is responsible for all of
that person's damages arising from any mistaken or unnecessary
surgery").
¶88 Our decision in Spencer v. DILHR, 55 Wis. 2d 525, 200
N.W.2d 611 (1972), illustrates this principle.9 In Spencer, we
held that an employee is not "to be faulted because he chose to
follow erroneous medical advice . . . as long as he did so in
good faith." Id. at 532. Spencer was predicated on good faith;
and based on good faith, we concluded it was eminently
reasonable for an employee to rely on the advice of a physician
when deciding whether to undergo invasive treatment. Id.
("There is no evidence to show that in accepting arthrodesis
Spencer did so other than in good faith. The employer is
responsible for the consequences not only of the injury, but the
treatment."); see also Honthaners Restaurants, Inc. v. LIRC,
2000 WI App 273, ¶15, 240 Wis. 2d 234, 621 N.W.2d 660 ("In
9
Spencer v. DILHR, 55 Wis. 2d 525, 200 N.W.2d 611 (1972)
predated the passage of Wis. Stat. § 102.42(1m). In Spencer,
the employee suffered an injury at work and underwent surgery.
Id. at 526-27. After the surgery, the employee suffered a 15%
partial permanent disability. Id. The doctor that performed
the surgery determined that further treatment was unnecessary.
Id. However, the employee saw another physician, who concluded
that the employee should undergo another surgery. Id. The
subsequent surgery left the employee with partial permanent
disability of 40%. Id.
16
No. 2015AP1989.pdr
Spencer, the supreme court allowed recovery for medical
treatment and expenses that were incurred when the injured
employee followed what, in hindsight, appeared to be erroneous
medical advice. Spencer teaches that as long as the claimant
engaged in the unnecessary and unreasonable treatment in good
faith, the employer is responsible for payment." (internal
citations omitted)).
¶89 Accordingly, all that Wis. Stat. § 102.42(1m) requires
the employee to prove in order to come within the statutory
provisions is that at the time when the employee undertakes an
invasive procedure he or she had a good faith belief that the
procedure would treat a compensable injury and that the invasive
treatment resulted in a disability. The employee need not show
that the compensable work injury caused the employee to undergo
invasive treatment.
D. Application
¶90 In the present case, Flug provided proof to the ALJ in
the form of Dr. Floren's written report and she testified.
Dr. Floren was one of her treating physicians. Wal-Mart
provided the report of Dr. Soriano, who did not review Flug's
medical records until after she had surgery.
¶91 It is undisputed that Flug suffered a compensable
injury and underwent an invasive treatment, a discectomy. It is
also undisputed that she did not have pain prior to the work-
related injury on February 14, 2013. Furthermore, it is
undisputed that her pain continued as she went from health care
provider to health care provider in search of effective
17
No. 2015AP1989.pdr
treatment for pain and the pain continued until after she
underwent a discectomy on June 4, 2013.
¶92 Dr. Soriano's report opines that surgery was
unnecessary to treat her work-related injury. However, Flug did
not have the benefit of his opinion at the time she undertook
invasive treatment. Finally, it is undisputed that Flug's
unnecessary treatment caused the disability for which she now
seeks benefits.
¶93 Moreover, Dr. Soriano's opinion that the work-related
injury did not necessitate invasive treatment is of no
relevance. Dr. Soriano's opinion speaks to whether the need for
invasive treatment was caused by her work-related injury.
However, Dr. Soriano gave his opinion after Flug's surgery.
¶94 Post-hoc examinations like Dr. Soriano's are not
relevant when determining whether Flug acted with a good faith
belief at the time she undertook surgery that it would alleviate
the pain she had suffered since her work-related injury on
February 14, 2013. Flug's good faith belief is her state of
mind at the moment when she undertook the invasive treatment.
And, it is her state of mind at the time she undertook surgery
that the majority opinion avoids discussing.
¶95 In sum, Flug satisfied most of Wis. Stat.
§ 102.42(1m)'s criteria. She sustained a compensable (work-
related) injury. Based on medical advice to treat pain, she
underwent a discectomy, an invasive and medically acceptable
treatment that was unnecessary to treat her work-related injury.
And, she sustained a disability as a result of the surgery. If
18
No. 2015AP1989.pdr
she undertook the discectomy with the good faith belief that it
would treat her work-related injury, Wis. Stat. § 102.42(1m)
requires nothing more. However, as I explained above, good
faith is a fact question that appellate courts do not decide.
Accordingly, a remand to LIRC is necessary.
III. CONCLUSION
¶96 I conclude that Flug, who has sustained a compensable
(work-related) injury from which began a continuing course of
pain and who underwent surgery upon the advice of medical
doctors to alleviate that pain, is entitled to compensation
pursuant to Wis. Stat. § 102.42(1m) if she accepted the
physician's advice and undertook surgery with the good faith
belief that surgery would treat her work-related injury, even
though surgery was unnecessary treatment for that injury.
Neither LIRC nor the ALJ made factual findings in regard to
Flug's good faith belief, or the lack thereof, in undertaking
surgery. Therefore, I would remand the matter to LIRC to make
the requisite finding and complete its obligations under
§ 102.42(1m).
¶97 Accordingly, I would affirm the court of appeals'
decision reversing LIRC and remanding the matter for additional
fact-finding on the issue of good faith, and if necessary for a
determination of the damages to which Flug is entitled. Because
the majority opinion fails to recognize the factual nature of
good faith, its importance to the plain meaning of Wis. Stat.
§ 102.42(1m) and avoids addressing good faith in the context in
19
No. 2015AP1989.pdr
which it arises, I respectfully dissent from the majority
opinion.
20
No. 2015AP1989.awb
¶98 ANN WALSH BRADLEY, J. (dissenting). There is a
reason that the court of appeals issued an unpublished decision
here. And it likely is the messy record, which certainly does
not represent LIRC's finest hour.
¶99 There is one, and only one, LIRC decision that was
ever issued in this case. It is dated February 23, 2015, and it
is the decision we review today. DeBoer Transp., Inc. v.
Swenson, 2011 WI 64, ¶29, 335 Wis. 2d 599, 804 N.W.2d 658 ("When
reviewing a worker's compensation claim, we review LIRC's
decision, not the decisions of the circuit court or court of
appeals."); see also Stoughton Trailers, Inc. v. Labor and
Indus. Review Comm'n, 2007 WI 105, ¶26, 303 Wis. 2d 514, 735
N.W.2d 477.
¶100 The majority has forthrightly acknowledged that we owe
no deference to LIRC's conclusion of law set forth in that
decision because, as even LIRC has now confessed, its conclusion
is clearly erroneous. Majority op., ¶16. Likewise, the
majority has acknowledged that the issue it decides today was
never addressed by the Commission because of "its mistaken
belief that Ms. Flug had suffered no compensable injury at all."
Id.
¶101 So what is this case doing here?
¶102 The problem, of course, arises from LIRC's February
23, 2015, decision where it misstated or misunderstood the
essential conclusion of law it was supposed to be reviewing.
Rather than issuing an order modifying the Feb 23, 2015,
decision or issuing a new decision from which appeal rights
1
No. 2015AP1989.awb
attend,1 appellate counsel for LIRC attempts to change horses in
midstream.
¶103 The Department of Justice, representing LIRC on
appeal, now argues that although LIRC misstated the only
conclusion of law it was supposed to be reviewing, such an
impediment presents no obstacle to our review because this error
was "inconsequential." It contends that because LIRC adopted
the ALJ's findings of fact and conclusions of law in full, that
this court is bound by those findings of fact.
¶104 However, in its February 23, 2015, decision, LIRC
expressed one important caveat concerning findings of fact that
excludes any potential for reliance on Dr. Soriano's report——a
report relied upon in the majority opinion——the ALJ "did not
adopt the findings of Dr. Soriano." Flug v. Wal Mart Assocs.,
Inc., WCD No. 201300610 (LIRC, Feb. 23, 2015). Consequently,
LIRC also did not adopt those findings.
¶105 Additionally, appellate counsel's argument flies in
the face of well-established precedent on administrative agency
review. Counsel is trying to do now what LIRC did not do.
However, appellate counsel is stuck with the facts of the case,
which consist of a clearly erroneous February 23, 2015, LIRC
decision. "[T]his court cannot accept appellate counsel's post
1
Wisconsin Stat. § 102.23(1)(a)2., provides in relevant
part that "[w]ithin 30 days after the date of an order or award
made by the commission, any party aggrieved by the order or
award may commence an action in circuit court for review of the
order or award by serving a complaint as provided in par. (b)
and filing the summons and complaint with the clerk of the
circuit court."
2
No. 2015AP1989.awb
hoc rationalization for agency action. If an agency's order is
upheld, it must be on the same basis articulated in the order by
the agency itself." Illinois v. United States, 666 F.2d 1066,
1077 (7th Cir. 1981) (citing Fed. Power Comm'n v. Texaco, Inc.,
417 U.S. 380, 397, 94 S. Ct. 2315 (1974); Burlington Truck Lines
v. United States, 371 U.S. 156, 168-69, 83 S. Ct. 239 (1962)).
See also Bagdonas v. Dep't of Treasury, 93 F.3d 422, 426 (7th
Cir. 1996) ("It is, of course, well settled that courts cannot
accept counsel's post hoc rationalization for agency action.").
¶106 Rather than acknowledge and address the procedural
morass into which this court has waded, the majority skirts the
issue, contending that it must accept LIRC's findings of facts:
"the Commission has already found and we must accept [the
findings]." Majority op., ¶34.
¶107 What factual finding is there that the majority feels
so enslaved to uphold?
¶108 It cannot be any factual finding based on Dr.
Soriano's report because as stated above, the LIRC decision
specifically observed that it did not adopt those findings.
¶109 It cannot be any of the asserted factual findings
relied upon by the majority because they do not exist. For
example, the majority asserts that the ALJ and the Commission
specifically found that "the surgery didn't treat Ms. Flug's
compensable injury." Majority op., ¶23. Likewise, the majority
contends that LIRC made a factual finding about the object of
the surgery: "we must accept" the Commission's factual finding
3
No. 2015AP1989.awb
that the "object of Ms. Flug's surgery was not her compensable
injury, but her pre-existing condition." Majority op., ¶34.
¶110 Attached to this writing are the findings of fact of
the ALJ as well as the February 23, 2015, decision of LIRC. As
the reader will be able to observe, neither the ALJ nor LIRC
made such findings.
¶111 The majority uses the clearly erroneous LIRC decision
and nonexistent findings of fact as a springboard to avoid the
real issue in this case: whether the event of February 14,
2013, aggravated and accelerated beyond normal progression a
progressively deteriorating condition. In doing so, the
majority makes errors in both what it says and what it fails to
say.
¶112 Contrary to the majority, I would remand this case to
LIRC for a new hearing so that it can weigh the competing
medical opinions and then, based on those opinions, issue
findings of fact and a conclusion of law that is not clearly
erroneous.2
Accordingly, I respectfully dissent.
2
I would reverse and remand LIRC's decision for a
determination of the threshold issue of whether Ms. Flug's work
injury aggravated and accelerated her preexisting condition
beyond its normal progression. With one exception, I also join
Chief Justice Roggensack's dissent addressing Flug's alternative
argument on the issue of good faith. As set forth herein, the
majority opinion contains a number of factual missteps and
therefore I cannot join the sentence in Chief Justice
Roggensack's dissent that states "[t]he majority opinion ably
sets forth the underlying facts." Chief Justice Roggensack's
dissent, ¶47.
4
No. 2015AP1989.awb
I.
¶113 This case started out as a somewhat routine worker's
compensation case. Ms. Flug has a conceded work injury of
February 14, 2013, which she sustained while repeatedly raising
her right arm to scan boxes at Walmart. She initially treated
with her primary care physician, who referred her to an
occupational specialist, Dr. Andrew Floren.
¶114 After a two month period of treatment, Dr. Floren
referred Ms. Flug for an evaluation by a neurosurgeon, Dr.
Eduardo Perez. He found that she had a degenerative disc
disease and that a discectomy and fusion was needed at two
levels in the cervical spine. Dr. Perez recommended that she
have surgery. He "discussed all these findings with Ms. Flug,"
and "entered into an informed consent discussion regarding
anterior cervical discectomy with fusion/fixation at the C5-6,
C6-7 levels."
¶115 The surgery that Ms. Flug underwent on June 4, 2013,
was apparently successful. Under worker's compensation law,
this particular procedure is a scheduled injury, which means a
pre-determined minimum amount of disability attributable to the
limitations that arise from the nature of the surgery itself.
¶116 In a follow up exam, Ms. Flug reported that she "was
doing excellent" and felt almost 100 percent better. That's the
good news for Ms. Flug. Now the bad news.
¶117 After Ms. Flug underwent surgery, the worker's
compensation carrier hired Dr. Morris Soriano to do an
independent medical exam. He never met with Ms. Flug, but upon
5
No. 2015AP1989.awb
a review of her records, filed a report one year after the
injury and 9 months after the surgery, opining that the February
14, 2013, event did not aggravate beyond normal progression her
pre-existing spinal condition.
¶118 On the other hand, Dr. Floren opined that it did. He
stated that he "strongly disagree[d]" with Dr. Soriano's
statement, observing that "[t]he patient's history, clinical
examination, and radiologic studies all support her need of
surgery; which decision was also shown appropriate by her
response to that surgery."
¶119 Competing medical opinions in worker's compensation
cases are standard fare. Ms. Flug does not contend that the
event of February 14, 2013, caused her degenerative spinal
condition. Of course it did not. Nor does she assert that the
event simply aggravated her spinal condition, because a mere
aggravation of a pre-existing condition is insufficient to be
compensable under worker's compensation law. See Lewellyn v.
Indus. Comm'n, 38 Wis. 2d 43, 59, 155 N.W.2d 678 (1968). The
aggravation and acceleration beyond normal progression of a
progressively deteriorating condition, however, is compensable
and that was the basis of her claim before LIRC. Id.
¶120 At the administrative hearing, the case was presented
as a battle between written expert medical opinions. One
determined that the February 14, 2013, injury aggravated and
accelerated beyond normal progression the pre-existing condition
and the other concluded that it did not.
6
No. 2015AP1989.awb
¶121 The ALJ's decision set forth the information provided
in the written reports of both Dr. Floren and Dr. Soriano,
however, it relied on neither. As the LIRC decision explains,
the ALJ's decision is not based on the findings of Dr. Soriano.
And it certainly is not based on Dr. Floren's opinion because it
is contrary to it.
¶122 If the ALJ's decision was based on neither the medical
opinion of Dr. Floren nor on that of Dr. Soriano, then on what
medical expert opinion did the ALJ base its conclusion?
Apparently, the ALJ engaged in its own sojourn into the medical
records and determined that no additional compensation was due.
II
¶123 Having set forth the facts, I turn to address both
what the majority opinion has erroneously stated and what of
import it has failed to state.
¶124 From the outset, the majority gets the facts wrong.3
It states that Ms. Flug "underwent surgery in the belief it was
necessary to treat her work-related soft-tissue strain."
Majority op., ¶1.
3
Additionally, the majority states that the parties agree
that Flug "suffered a permanent partial disability as a direct
result of the treatment." Majority op., ¶18. Walmart concedes
that Ms. Flug suffered a temporary disability due to her
cervical strain. However, it does not agree that Ms. Flug
suffered a permanent partial disability because it contests that
Ms. Flug is entitled to worker's compensation benefits as a
result of her surgery.
7
No. 2015AP1989.awb
The majority is incorrect. Ms. Flug did not undergo
surgery because she believed it necessary to treat a
strain. The record reflects that prior to recommending
surgery, Ms. Flug's surgeon, Dr. Perez, diagnosed Ms.
Flug with "right-sided C7 radiculopathy associated
with C6-7 disk osteophyte complex and degenerative
disk disease at the C5-6 level." Dr. Perez "discussed
all these findings with Ms. Flug," and "entered into
an informed consent discussion regarding anterior
cervical discectomy with fusion/fixation at the C5-6,
C6-7 levels."
¶125 The majority again errs when it contends that the ALJ
and the Commission specifically found that "the surgery didn't
treat Ms. Flug's compensable injury."4 Majority op., ¶23.
No such finding exists.
¶126 Likewise, the majority asserts that we must accept the
Commission's factual finding that the "object of Ms. Flug's
surgery was not her compensable injury." Majority op., ¶34.
No such finding exists.
¶127 The majority further asserts that Ms. Flug's argument
is beyond its reach, because she "does not assert the findings
4
The ALJ found as a factual matter that there was a
variance in the history Ms. Flug gave her treating physicians.
Based on this factual finding, the ALJ made the conclusion of
law that "there is a legitimate doubt as to the compensability
of the claim as a traumatic injury beyond that already conceded
and paid by the respondents."
8
No. 2015AP1989.awb
of fact are the result of fraud, or that the Commission acted
outside of its powers." Majority op., ¶23.
Ms. Flug has consistently argued that the Commission
acted outside of its powers. In her appeal to the
circuit court she argued that "LIRC acted without and
in excess of its powers as described in Wis. Stat.
§ 102.23." She continued this argument in the court
of appeals, which explained that "Flug argues the
Commission acted in excess of its powers in three
respects." Flug v. Labor & Indus. Review Comm'n, No.
2015AP1989, ¶24, unpublished slip op. (Wis. Ct. App.
June 21, 2016).
The majority contradicts itself when it asserts that
Flug does not argue here that LIRC acted in excess of
its powers. What does "acted in excess of its powers"
means in the context of worker's compensation? It is
well-settled that "when a decision by LIRC is not
supported by credible and substantial evidence, the
decision is in excess of LIRC's authority." Xcel
Energy Serv. Inc., v. Labor and Indus. Review Comn'n,
2013 WI 64, ¶55, 349 Wis. 2d 234, 833 N.W.2d 665.
And yet, that is precisely what the majority
acknowledges is advanced here. The majority describes
Ms. Flug's arguments as "a continuation of the
argument Ms. Flug made in the court of appeals, where
she unequivocally stated she "'sustained a compensable
injury and . . . underwent surgery for a compensable
9
No. 2015AP1989.awb
injury.' Ms. Flug maintained this position even
through oral argument here." The basis of Ms. Flug's
argument is that LIRC's decision was not supported by
the relevant evidence of record: "She says the
relevant medical testimony establishes that the
surgery for the injury was reasonable and necessary"
and that "her surgery was, in fact, for a compensable
injury." Majority op., ¶¶20, 23.
¶128 Attempting to explain the reasoning of LIRC and the
court of appeals, the majority offers that "both the Commission
and the court of appeals base their competing analyses on the
shared understanding that Ms. Flug's surgery had nothing to do
with her compensable injury." Majority op., ¶20.
The Commission could not have based its analysis on
the understanding that her surgery had nothing to do
with her compensable injury because it concluded that
she had no compensable injury.
The court of appeals never determined whether Ms.
Flug's surgery was related to her compensable injury.
Instead, as the majority earlier acknowledged the
court of appeals didn't need to decide "whether the
invasive procedure was actually directed at a
compensable injury, so long as the employee had a good
faith belief that it was." Majority op., ¶19.
¶129 Having set forth some of the majority's errors in
what it says, I address next what it fails to say. It is only
by relying on some of these errors that the majority is able to
10
No. 2015AP1989.awb
remain silent, refraining from addressing Ms. Flug's essential
argument.
¶130 Although the majority acknowledges that Ms. Flug's
true argument is that her surgery was necessitated by the
February 14, 2013, event because it aggravated and accelerated
beyond normal progression a progressively deteriorating
condition, it insists that it cannot discuss it. The majority
contends that it is precluded from addressing Ms. Flug's
argument regarding the nature of her injury because of
nonexistent findings of fact. Majority op., ¶23 ("Thus, because
the Commission eliminated the factual predicate for Ms. Flug's
argument, we would not be able to engage it unless we first
rejected the Commission's finding on this point."). It declares
that "Ms. Flug's argument [is] beyond our reach." Id.
¶131 The majority is likewise silent about the extent of
Ms. Flug's disability. It emphasizes in its recitation of facts
that at a one month post surgery appointment Ms. Flug stated
that "she was doing 'excellent' and feeling 'almost 100
[percent]'". Majority op., ¶4. The picture that the majority
paints makes the reader wonder whether Ms. Flug has any
disability whatsoever. Nowhere in the majority opinion is the
reader advised that the surgery causes permanent limitations.
The worker's compensation administrative rules recognize that a
minimum disability for each level of a discectomy/fusion is 10
11
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percent permanent partial disability.5 Ms. Flug had procedures
at two levels of her cervical spine.
¶132 Finally, the majority says nothing about that part of
LIRC's February 23, 2015, decision where it excluded any
potential for reliance on Dr. Soriano's report. The majority
relies on the report despite LIRC's determination that the ALJ
"did not adopt the findings of Dr. Soriano." Flug v. Wal Mart
Assocs., Inc., WCD No. 201300610 (LIRC, Feb. 23, 2015).
¶133 In sum, because the February 23, 2015, decision of
LIRC is clearly erroneous and not supported by any findings of
fact, I would remand this case to LIRC for a new hearing,
providing an opportunity to weigh the competing medical opinions
and then, based on those opinions, issue new findings of fact
and a conclusion of law that is not clearly erroneous.
¶134 Accordingly, I respectfully dissent.
¶135 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
5
Ms. Flug had surgery on both the C-5/C-6 level and the C-
6/C-7 level. The Department of Workforce Development rule
governing a scheduled worker's compensation injury provides in
relevant part that "[t]he disabilities set forth in this section
are the minimums for the described conditions." DWD 80.32(1)
(2015-16); see also Wis. Stat. § 102.52. The minimum permanent
partial disability rating for a discectomy and fusion is 10% per
level. DWD 80.32(11).
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Tracie L. Flug v. Labor and Industry Review Commission
Court: Wisconsin Supreme Court
Date filed: 2017-06-30
Citations: 376 Wis. 2d 571, 2017 WI 72
Copy CitationsCombined Opinion