Tracie L. Flug, Plaintiff-Appellant,
Labor and Industry Review Commission, Wal-Mart Associates, Inc. and New Hampshire Insurance Company c/o Claims Management, Inc., Defendants-Respondents-Petitioners.
ARGUMENT: March 15, 2017
OF A DECISION OF THE COURT OF APPEALS Reported at 370 Wis.2d
789, 882 N.W.2d 872 (2016 - Unpublished)
Court Chippewa County (L.C. No. 2015CV98), James M. Isaacson
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 1. Vandermeuse.
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.
the plaintiff-appellant, there was a brief and oral argument
by Jeffrey J. Klemp and Law Offices of Jeffrey Klemp, Eau
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 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.
Flug's Injury and Surgery
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."
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 right upper back and shoulder pain with no sign
of cervical involvement.
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
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
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
through August 8, 2013, as well as benefits for a 20 percent
permanent partial disability consequent to her back surgery.
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
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.
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 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
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.
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 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
The ALJ 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."
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 court assumed the existence of Ms. Flug's
workplace injury, but concluded the Commission/ALJ had a
sufficient factual basis to deny the claim for benefits, and
so affirmed. Ms. Flug appealed.
In an unpublished opinion, the court of appeals reversed the
circuit court. 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 (lm)
(2013-14),  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.
The Commission's timely petition for review presented
this single issue: "Does Wis.Stat. § 102.42(lm)
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
STANDARD OF REVIEW
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(lm) de novo.
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)l.
Ms. Flug does not challenge the Commission's findings of
fact here, so we accept them as presented by the Commission.
Whether Ms. Flug is entitled to compensation depends on how
Wis.Stat. § 102.42(lm) 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 . . .
Terms of the Argument
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 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 (lm), 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
Contrary to what one might expect, Ms. Flug's argument
neither directly refutes the Commission's position, nor
champions the court of appeals' analysis. 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.Instead, she characterizes her dispute with
the Commission as a disagreement over the extent of benefits
available for the 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."
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');">200 N.W.2d 611 (1972). Indeed, Ms.
Flug dedicated the bulk of her argument to the proposition
that Wis.Stat. § 102.42 (lm) is, in the main, a
codification of Spencer, and that we can resolve
this case by reprising that analysis here. 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 employer was liable because Mr. Spencer "now has a
stiff knee resulting from the original injury."
Id. at 532. Ms. Flug says § 102.42(lm) maintains
this understanding, and that "[e]mployers remain liable
for the good faith treatment an injured employee receives for
a compensable injury."
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 analysis because it doesn't
address the extent of treatment undertaken, in good faith,
for a compensable injury."
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. 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. 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 conclusive. And that puts Ms. Flug's argument
beyond our reach.
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 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 preexisting 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
it Means to be "Unnecessary"
Still, we must determine what it means for a treatment to be
"unnecessary" within the meaning of Wis.Stat.
§ 102.42(lm) so that we can determine whether the
Commission properly denied Ms. Flug's application for
benefits. 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.
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 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)).
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 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.
This context informs our inquiry into the meaning of
Wis.Stat. § 102.42(lm), 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.
There are two logical ways of reading a statutory provision
like Wis.Stat. § 102.42 (lm) . 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:
(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
(5) the employee incurred a disability as a result of the
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
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. 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 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
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 application of remedies to a patient or for a
disease or an injury; medicinal or surgical management;
therapy." Regardless of whether the word takes its
nominal or verbal form, it must still be understood as
operating on something.
With that understanding of this central term, we can now let
the rules of grammar direct our understanding of Wis.Stat.
§ 102.42(lm). 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
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, 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.
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 found
(and we must accept) that the object of Ms. Flug's
surgery was not her compensable injury.
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.
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 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.
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(lm) 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, " and
disability benefits only for incapacities caused by a
work-related injury. 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(lm)
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. Without
this, there would be no statutory liability for such an
event. So § 102.42(lm) 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
Ms. Flug says Wis.Stat. § 102.42(lm) 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.
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
doctor, who recommended an arthrodesis. 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(lm) must treat the
compensable injury to qualify for benefits, our holding is
consistent with what we said in Spencer.
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
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 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.
Our opinion today tracks the language of Wis.Stat. §
102.42(lm) and is consistent with prior opinions delivered by
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(lm) to suggest such a momentous change, and even if
that change is warranted, we are not ...