Belief That Disability-Causing Treatment Was For a Work-Related Condition Isn’t Enough
On June 30, 2017, the Wisconsin Supreme Court issued its opinion in Flug v. Labor and Industry Review Commission, addressing whether an employee who has both work-related and non-work-related conditions affecting the same part of her body can recover permanent partial disability benefits for a disability that resulted from an unnecessary treatment that she sincerely believed was intended to address her work-related condition. In a 4-3 decision authored by Justice Daniel Kelly, the supreme court overturned an unpublished decision from the Wisconsin Court of Appeals and ruled that an employee isn’t eligible for benefits under Wis. Stat. § 102.42(1m) if the purpose of the disability-causing procedure was to treat something other than the employee’s compensable injury.
Tracie Flug’s workplace injury occurred in February 2013 when she was working as a Walmart store supervisor. On the date of her injury, she was using a price scanner to scan a product that was over her head. After lowering the scanner, she felt severe pain in her neck and right arm. She was diagnosed with a right arm and shoulder strain that was deemed possibly related to her cervical spine.
The following month, Flug told an occupational medicine specialist that her symptoms were slowly resolving, but she still had radiating pain in her posterior right shoulder and down her arm. Her cervical spine X-rays showed mild degenerative changes; however, those changes were never connected to the workplace incident. Because her condition didn’t fully resolve over the next few months, she was eventually referred to a neurosurgeon, who recommended an anterior cervical discectomy with fusion/fixation at C5-C6 and C6-C7.
Flug had surgery in June 2013, after which she reported feeling much better. She was released to return to work in July with some temporary work restrictions but was declared to have reached a healing plateau by November 2013.
Flug’s medical expenses were paid by Walmart’s worker’s compensation carrier up through May 9, 2013, and her temporary disability benefits were paid through June 22, 2013. However, because the employer disputed the work-relatedness of her degenerative disk disease, further compensation for her medical expenses or disability benefits was denied. As a result, she filed a worker’s comp claim in August 2013.
Following the April 2014 hearing on the compensability of Flug’s claims, Administrative Law Judge (ALJ) Roy Sass issued a decision acknowledging she had suffered an injury at work, but there was “legitimate doubt as to the compensability of the claim as a traumatic injury beyond that already conceded and paid” by the employer. Consequently, he dismissed the claim.
Flug appealed the ALJ’s decision to the Labor and Industry Review Commission (LIRC), which affirmed the dismissal of her claims, stating that she wasn’t entitled to permanent partial disability benefits because the ALJ had expressed “legitimate doubt as to whether she suffered any work injury.” She then appealed to the Chippewa County Circuit Court.
LIRC admitted its mistake in stating that the ALJ wasn’t convinced Flug had a work-related injury but nonetheless argued that the circuit court should affirm its determination because her surgery was unrelated to her workplace injury. The circuit court did affirm LIRC’s decision, finding there was sufficient factual basis to deny the claim for additional benefits. Flug appealed the circuit court’s decision, and the court of appeals reversed, focusing its analysis on whether the disability-creating treatment must be undertaken to treat a compensable injury to qualify the employee for benefits.
The court of appeals concluded that under Wis. Stat. § 102.42(1m), no relationship between the job-related injury and the treatment is required; rather, the employee need only have a good-faith belief that the treatment was both necessary and intended to treat her work-related injury. As a result, the matter was sent back to LIRC. The commission then petitioned the Wisconsin Supreme Court for review.
Wisconsin Supreme Court’s Analysis
LIRC’s petition for review presented a single question for the Wisconsin Supreme Court: whether an employer is liable under Wis. Stat. § 102.42(1m) for a disability resulting from invasive treatment when the claimant hasn’t established that the procedure actually treated a compensable work injury. The supreme court reviewed the question of law regarding the meaning of section 102.42(1m) anew but considered the commission’s findings of fact to be conclusive.
Section 102.42(1m) states, “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.” The dispute therefore centered on what it means for a treatment to be “generally medically acceptable, but . . . unnecessary” and what relationship, if any, must exist between the treatment and the employee’s compensable injury for the resulting disability to also be compensable.
The court undertook its interpretation of the statutory language according to the canons of statutory construction, considering the plain language of the statute in the context of the entire worker’s comp statutory scheme. Noting that the general scheme of the worker’s comp program requires payment of medical expenses and disability benefits only when they are attributable to a qualifying injury, the court concluded that the appellate court’s method of parsing section 102.42(1m) into five distinct elements impermissibly separated compensability for disability caused by unnecessary treatment from a compensable work injury.
The supreme court noted that such an interpretation “would extend employer liability to injuries and diseases that have nothing to do with the workplace.” Instead, it elected to read the statutory section as a sentence, “paying attention to rules of grammar, syntax, and diction to tease out its meaning.” Reading the statute in that way and in the context of the worker’s comp statutes as a whole, the majority determined that a qualifying treatment under section 102.42(1m) must treat or be intended to treat a compensable injury, not simply be a procedure that the employee believes, in good faith, would treat the compensable injury.
In separate dissenting opinions, Chief Justice Patience Roggensack and Justice Ann Walsh Bradley (joined by Justice Shirley Abrahamson) highlighted the deficiency in LIRC’s evidence, noting it failed to establish the facts surrounding the issue of Flug’s reliance on her doctor’s advice about the surgery and whether it was in good faith. Both dissenting justices concluded that they would have sent the case back for a new hearing on the issue of Flug’s good-faith reliance on the recommendation that she undergo invasive treatment. Flug v. Labor and Industry Review Commission, 2017 WI 72.
It’s important to remember that Flug arose out of an injury that occurred in February 2013. Since the amendment to Wis. Stat. § 102.175(3), treating physicians and independent medical examiners evaluating work injuries that occur on or after March 2, 2015, are required to address the issue of the causation of a permanent disability and determine the percentage of permanent disability that directly results from the work-related injury versus the percentage attributable to other factors that existed before and after the injury.
Regardless of the date of an employee’s injury, it remains important to establish a sound record of the employee’s prior symptoms, diagnoses, and treatment as well as to highlight any preexisting conditions for the independent medical examiner. Records from the preoperative medical evaluations, operative reports, and postoperative appointments should list specific diagnoses that particular procedures, therapeutic interventions, and surgeries are intended to treat. These are the records that can help you establish whether any disability-causing invasive procedures were actually treating a compensable injury.
This article, slightly modified to note recent updates, was featured in the September 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.