898 N.W.2d 91
Wis.2017Background
- On Feb. 14, 2013 Trade L. Flug experienced neck/arm pain at work; employer (Wal‑Mart) conceded a work injury and initially paid limited benefits.
- Treating physicians ultimately recommended and performed an anterior cervical discectomy and fusion (June 4, 2013); Flug later had permanent partial disability from the surgery.
- Independent medical reviewer (Dr. Soriano) concluded the workplace event caused only a soft‑tissue strain that healed within weeks and that the surgery treated preexisting degenerative disc disease, not the compensable injury.
- ALJ dismissed Flug’s claim, finding legitimate doubt about compensability beyond amounts already paid; the Labor & Industry Review Commission (LIRC) adopted the ALJ’s decision.
- The court of appeals reversed, holding §102.42(1m) permits recovery if the employee reasonably and in good faith believed the treatment would address a compensable injury, regardless of whether it in fact did.
- Wisconsin Supreme Court granted review and reversed the court of appeals, holding §102.42(1m) covers only unnecessary invasive treatment that was directed at the compensable injury (not treatment addressing unrelated conditions).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Wis. Stat. §102.42(1m) make employer liable for disability from invasive treatment when the treatment did not in fact treat the compensable injury but the employee reasonably believed it did? | Flug: statute codifies Spencer; employee need only undertake medically acceptable invasive treatment in good faith believing it treats the compensable injury — recovery allowed even if treatment actually addressed a preexisting condition. | LIRC/Wal‑Mart: statute applies only where the invasive treatment is aimed at the compensable injury; if the treatment in fact treated a nonwork condition, no liability. | Held: §102.42(1m) extends employer liability only to unnecessary, invasive treatment that is directed at the compensable injury; good faith belief alone (without treatment actually addressing the compensable injury) is insufficient. |
Key Cases Cited
- Spencer v. DILHR, 55 Wis. 2d 525, 200 N.W.2d 611 (Wis. 1972) (employer liable for consequences of unnecessary treatment taken in good faith for an undisputed compensable injury)
- City of Wauwatosa v. LIRC, 110 Wis. 2d 298, 328 N.W.2d 882 (Ct. App. 1982) (Spencer rationale limited to treatment for an undisputed compensable industrial injury)
- Honthaners Restaurants, Inc. v. LIRC, 240 Wis. 2d 234, 621 N.W.2d 660 (Ct. App. 2000) (applies Spencer where treatment was directed at compensable injury despite disagreement over necessity)
- State ex rel. Kalal v. Cir. Ct. for Dane Cty., 271 Wis. 2d 633, 681 N.W.2d 110 (Wis. 2004) (principles of statutory interpretation)