July 11, 2017 – An employee with two medical conditions, only one related to her work at Walmart, won’t get worker’s compensation for her permanent partial disability that resulted from a surgical procedure, under a recent Wisconsin Supreme Court decision.

That’s because the surgery did not treat a work-related injury, a 4-3 majority explained in Flug v. Labor and Industry Review Commission, 2017 WI 72 (June 30, 2017). Surgery treated a preexisting condition that was not caused by the work injury.

Klug, a store supervisor at the Walmart in Chippewa Falls, sought compensation under Wis. Stat. section 102.42(1m), which requires an employer to indemnify an employee who sustains a disability as a result of an invasive treatment undertaken in good faith, even if the treatment turns out to be unnecessary in treating a work-related injury.

The employee must have a “compensable injury,” an injury sustained through work, and the invasive treatment must be “medically acceptable.” Employers are not required to pay for noninvasive treatments that are unnecessary or not medically acceptable.

The 4-3 majority ruled that Flug did not meet the requirements of the statute because she underwent surgery to treat a medical condition that was not work-related, reversing a decision by the Wisconsin Court of Appeals, which ruled in favor of Flug.

“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,” wrote Justice Daniel Kelly for the majority.

Chief Justice Patience Roggensack wrote a dissenting opinion. Justice Ann Walsh Bradley wrote a separate dissent, joined by Justice Shirley Abrahamson.

The Surgery

In 2013, Flug was price scanning inventory located on shelving above her head when she felt pain in her neck and right arm. A doctor visit revealed the diagnosis: “right arm and shoulder strain with possible relation to the cervical spine itself.”

She followed up with an occupational medicine specialist who took a cervical spine X-ray. He discovered “mild degenerative changes” but did not connect that condition to the work injury. Meanwhile, Flug stated that her shoulder strain was “slowly resolving.”

Still experiencing pain, Flug next saw a neurosurgeon. He recommended an “anterior cervical discectomy,” a type of neck surgery to relieve spinal cord or nerve pressure. Flug underwent the surgery and was back to work a month later.

However, the occupational specialist later determined that Flug had a permanent partial disability resulting from the neck surgery, which involves the fusion of vertebrae.

Walmart’s worker’s compensation insurance carrier paid for medical expenses related to the work-related neck and shoulder strain. But the carrier refused to pay expenses and continued disability resulting from neck surgery under section 102.42(1m).

Worker’s Compensation Claim

Flug filed a worker’s compensation claim with the Wisconsin Department of Workforce Development (DWD), seeking continuing medical expenses and disability indemnity for a 20 percent permanent partial disability as a consequence of neck surgery.

Walmart requested an independent medical examination and the examiner concluded that neck surgery relieved a “preexisting mild degenerative disc disease,” and the work-related neck and shoulder strain had healed long before she had neck surgery.

The work-related injury, the examiner concluded, had not caused disc degeneration and thus the invasive surgery was not aimed at treating a work-related injury.

The occupational specialist, however, concluded that it was “medically probable” that work activities aggravated or accelerated the preexisting degenerative condition and thus, the invasive surgery was reasonable and necessary to treat a work-related injury.

The neurosurgeon concluded that the surgery performed was “unrelated to the work incident or work exposure.” It was only aimed to address the preexisting condition.

An Administrative Law Judge (ALJ) dismissed the claims beyond what Walmart already paid. The Labor and Industry Review Commission (LIRC) affirmed. The Chippewa County Circuit Court also affirmed, and Flug appealed the decision.

But the court of appeals reversed, in an unpublished opinion, concluding that continued benefits were due because Flug believed in good faith that invasive treatment, the neck surgery, was related to and necessary to address the work-related injury.

Supreme Court Majority Reverses

A 4-3 majority reversed the appeals court on the following question: “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?” Four justices answered in the negative, and affirmed LIRC’s dismissal.

The majority reviewed LIRC’s decision de novo, noting LIRC’s mistaken conclusion that Flug suffered no compensable injury at all. The parties agreed that she did.

But the majority clarified that an employee cannot receive continued benefits for a work-related injury if the invasive treatment, which causes a permanent disability, is not aimed at treating a work-related injury, even if the employee believes it is.

Parsing out the language of the statute, the majority concluded that “treatments contemplated by the statute are those that are generally medically acceptable as a treatment of the compensable injury,” regardless of the employee’s “good faith.”

That is, an employee who in good faith believes that invasive treatment is necessary to treat a work-related injury does not automatically receive continued benefits.

Rather, benefits are only payable if an employee undertakes treatment in good faith, even if the “disability-creating treatment turns out not to have been necessary to treat her compensable injury.”

In Flug’s case, surgery did not treat a “compensable injury,” the majority concluded. “[W]e 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,” Kelly wrote.

“Because Ms. Flug’s surgery treated her pre-existing condition, not her compensable injury, her claim must be disallowed.”

Chief Justice Roggensack Dissents

Chief Justice Roggensack departed from the majority, dissenting and concluding that Flug was entitled to compensation under section 102.42(1m).

“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,” the chief justice wrote.

Roggensack said an employee’s good faith belief that invasive treatment will treat a work-related injury “is the central focus of § 102.42(1m),” and would have remanded the case to determine whether Flug had that good faith belief.

Justices Bradley, Abrahamson Dissent

Justice Ann Walsh Bradley wrote a separate dissent, joined by Justice Abrahamson. They would have remanded to LIRC for a new hearing, noting a “messy record.”

A.W. Bradley said LIRC’s decision “misstated and misunderstood the essential conclusion of law it was supposed to be reviewing,” because LIRC believed that Flug did not suffer a compensable injury at all, and that issue was central to the case.

They also said LIRC did not adopt all findings of fact that the majority relied on to decide the case. “The majority uses a clearly erroneous LIRC decision and nonexistent findings of fact as a springboard to avoid the real issue in this case,” wrote Justice A.W. Bradley, referring to whether the workplace injury made Flug’s preexisting condition worse.