Flug v. Labor & Industry Review Commission
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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.
Plaintiff suffered from a soft-tissue strain, which was work-related, and a degenerate disc disease, which was not work-related. In the belief that it was necessary to treat her soft-tissue strain, Plaintiff underwent surgery, which, in actuality, was treating the unrelated degenerative disc disease. The procedure left Plaintiff with a permanent partial disability. Plaintiff filed a workers’ compensation claim, which the Labor and Industry Review Commission denied. The circuit court affirmed. The court of appeals reversed, concluding that, based on its interpretation of section 102.42(1m), an employee need only have a good faith belief that the treatment was required. The Supreme Court reversed the court of appeals and affirmed the Commission’s order dismissing Plaintiff’s claim for disability benefits, holding that Plaintiff’s claim must be allowed because her surgery treated her pre-existing condition, not her compensable injury.
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2017 WI 72 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2015AP1989 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 REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 370 Wis. 2d 789, 882 N.W.2d 872 (2016 – Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: June 30, 2017 March 15, 2017 Circuit Chippewa James M. Isaacson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. For the Oral argument by Jennifer l. Vandermeuse. 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, FILED v. Labor and Industry Review Commission, Wal-Mart Associates, Inc. and New Hampshire Insurance Company c/o Claims Management, Inc., JUN 30, 2017 Diane M. Fremgen Clerk of Supreme Court Defendants-Respondents-Petitioners. REVIEW of a decision of the Court of Appeals. ¶1 medical disc DANIEL KELLY, J. conditions——a disease. The Reversed. Tracie L. Flug suffered from two soft-tissue first was strain, and work-related resolved), the second is not. a degenerative (and has since She underwent surgery in the belief it was necessary to treat her work-related soft-tissue strain. In degenerative actuality, disc it disease. permanent partial disability. employer) must compensate was The treating procedure the left unrelated her with a Ms. Flug tells us Wal-Mart (her her for this permanent partial No. disability because disability-causing she believed, surgery related condition. was in good-faith, necessary to 2015AP1989 that treat her the work- 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. ¶2 Ms. 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. Dr. Sabina Morissette. Ms. Flug sought medical treatment from Dr. Morissette diagnosed Ms. Flug with a "right arm and shoulder strain with possible relation to the cervical spine itself." ¶3 Ms. occupational Flug was medicine following month. referred to specialist, Dr. with Andrew whom Floren, she met an the 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." Floren also noted that a cervical spine x-ray showed Dr. "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. ¶5 Ms. Flug's Application for Benefits 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. agree the But because the insurance carrier did not 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. medical She sought expenses, compensation additional from Wal-Mart temporary 3 for disability continuing benefits 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 different matter. condition and degeneration, however, was an entirely Dr. Soriano said this was a pre-existing 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 degeneration." February 14, 2013, [caused Ms. Flug's] disc 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 preexisting precipitating, condition." aggravating He also noted or accelerating that Dr. Floren the had offered no objective evidence of any cervical disability related to the accident. He concluded, therefore, that the surgery was not necessary "reasonable, or related" to Ms. Flug's work injury. C. ¶10 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 probable" her that degenerative they condition, precipitated, it aggravated, was "medically or accelerated that preexisting condition beyond its normal progression. Floren found the surgery and all medical treatment Dr. 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." possible aggravated Dr. that or Soriano scanning worsened also said a product two levels 5 "[i]t is on shelf of a a not physically could previously have arthritic No. condition at C5-C6 symptomatic," relationship and and to C6-C7 that any to the the point surgery documentable, where "clearly 2015AP1989 it became ha[d] repetitive, no objective neurological findings." The ALJ1 acknowledged that Ms. Flug suffered an injury ¶12 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 the Ms. Flug sought review of the Commission's decision in 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 reversed the circuit court.3 disability-creating opinion, the court of appeals Its analysis focused on whether the treatment must be undertaken to treat compensable injury to qualify the employee for benefits. a 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 this The Commission's timely petition for review presented single employer liable treatment, treatment granted issue: when in the "Does for the fact disability claimant treated petition, Wis. and a has Stat. § 102.42(1m) resulting not established compensable now affirm from the work make an invasive that injury?" Commission's the We 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. II. ¶16 2015AP1989 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(1m) de novo.5 ¶17 The Commission's normally beyond question: findings of fact, however, are "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 on how Whether Ms. Flug is entitled to compensation depends 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. disagree on what it means for a treatment to be They "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. as the employee had a good faith belief that it was. 2015AP1989 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 necessary and the result of a compensable injury."). was both 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 neither Contrary to what one might expect, Ms. Flug's argument directly refutes the Commission's champions the court of appeals' analysis.6 Commission and the court of appeals position, nor Whereas both the 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. treatment of a compensable injury: 2015AP1989 "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, necessary undertaken to cure for and the injury, relieve' was from [her] 'reasonable the effects and of cervical disability which began at work." ¶21 argument, Out of the several cases Ms. Flug addressed in her there are two that provide insight on the nature of her argument. particularly helpful 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" 8 and we observed the 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 argument is second case providing City of Wauwatosa N.W.2d 882 (Ct. App. 1982). insight v. LIRC, 110 on Ms. Flug's Wis. 2d 298, 328 Her treatment of this case confirms that she believes her dispute with the Commission is about the extent of available compensable injury, when is there no benefits not consequent about whether relationship between treatment and her compensable injury. upon treatment benefits the are of a available disability-causing 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 to involving treatment injury." Id. at 301. "the Spencer for an rationale undisputed applies only compensable cases industrial 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. analysis because it doesn't address the extent of 2015AP1989 treatment undertaken, in good faith, for a compensable injury." ¶23 fact, Thus, Ms. Flug's argument assumes her surgery was, in "for" the compensable injury, and that the real controversy is over how much treatment was necessary to relieve her of the assumption, symptoms however, caused is not by that injury.10 warranted. The Ms. ALJ Flug's and the Commission found——as a factual matter——that the surgery didn't treat Ms. Commission Flug's compensable eliminated the injury.11 factual Thus, predicate because for Ms. the 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. conclusive.12 And that puts Ms. Flug's argument 2015AP1989 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 factual findings. 10. ALJ and Commission's Justice Ann Walsh Bradley's dissent, ¶¶107- 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. compensated Ms. Flug. 2015AP1989 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 workplace activity caused the injury the surgery treated. ("While exposure Dr. Floren was also causative, particularly given injury . . . ."). reported this the was the appreciable not developed inconsistency in her Id. workplace at hearing history of 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. determination: This is also the Commission's "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 preexisting 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 to Still, we must determine what it means for a treatment 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 with the statutory language. We begin 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 surrounding of or a whole; in closely-related relation statutes; avoid absurd or unreasonable results." to the and language of reasonably, to Id., ¶46. When this process produces a plain, clear meaning, we go no further. ¶26 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 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 N.W.2d 87 (1993). v. Rothering, 174 Wis. 2d 296, 302, 496 It "provides a broadly applicable method for compensating persons who suffer work-related physical and mental injuries." (1997). Byers v. LIRC, 208 Wis. 2d 388, 395, 561 N.W.2d 678 By relieving employers from tort liability, the Worker's Compensation program "mak[es] employers strictly liable for injuries liability to encompassed within the compensation Act, established by but the limit[s] 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). serves an intended important, to make but the limited, Workmen's purpose: Compensation insurance or health insurance measure." "It Law was an It never accident 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 statutorilydefined 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, treatment . . . as may be podiatric, reasonably 17 dental, required and to hospital cure and No. relieve from the effects of the injury . . . ." § 102.42(1). the Wis. Stat. An employer must also pay the employee benefits "if the injury causes disability." in 2015AP1989 general scheme of the Wis. Stat. § 102.43. program, medical Thus, 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 acceptable, invasive but treatment that is that is unnecessary, generally the medically employer shall pay disability indemnity for all disability incurred as a result of that treatment." statutory As we described above, we must discern the 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 provision like Wis. Stat. § 102.42(1m). sentence (as it was written), paying reading a statutory One can read it as a attention to rules grammar, syntax, and diction to tease out its meaning. might dice resulting it up element into as an its constituent independent and requirement qualifies nor is qualified by the others. favored the second approach. parts Or one treat that of each neither The court of appeals It said Ms. Flug is entitled to disability benefits if she meets five distinct elements, which it defined as follows: 18 No. (1) (2) (3) (4) (5) 2015AP1989 the employee sustained a compensable injury; he or she undertook invasive medical treatment; the treatment was undertaken in good faith; the treatment was generally medically acceptable, but unnecessary; and the employee incurred a disability as a result of the treatment. Flug, No. 2015AP1989, ¶30. legislature wrote. This, of course, is not what the 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. injury" provision to a This relegated the "compensable mere gatekeeper role that, once satisfied, could be ignored for the balance of the analysis. Consequently, the determinative.15 court of appeals' translation was outcome- 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. Roggensack's dissent, ¶87. 19 Chief Justice No. injury and the treatment. 2015AP1989 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. ¶31 Instead That is the question we must now answer. 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 "Treatment" "Treat," of is proper the course, place and nominal form is a function of transitive the in verb verb, requires a direct object on which to act. the "to which statute. treat." means it That is, one does not simply "treat," one treats something——a person, a condition, a disease, etc. Nominalizing transitive property: the verb doesn't remove its "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. employee phrase It is plausible, both textually and logically, that the could "who be has the object sustained of a the term compensable "treatment." injury" could The 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 English Language (3d ed. 1992) (emphases added). 17 of The 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 noncompensable degenerative disc disease. 21 No. says this: injury "If an employee who has sustained a compensable undertakes . . . invasive medically 2015AP1989 acceptable, requirement that but the treatment that is that is generally unnecessary . . . ." treatment be "generally The 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. what? If the object of the treatment But unnecessary to is the employee (as opposed to the compensable injury), then it wasn't unnecessary at all. In fact, it was quite the opposite. reported that the treatment brought her Ms. Flug herself back to nearly 100 appeals has percent. Neither Ms. Flug nor the court of explained how treatment can be that effective a simultaneously being unnecessary. statute makes injury, then directed——as the one a object must factual of If, on the other hand, the the determine while treatment whether matter——at that Either way, Ms. Flug's claim must end here. the the compensable treatment particular was injury. 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 compensable injury. because it was not treating the However, there is no grammatical rule that allows the object of the treatment to flicker like that. ¶36 question phrases We return now to the requirement that the treatment in be "generally "generally medically medically acceptable." acceptable" and Because "but that the 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." "compensable injury" from its And although it does not budge 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 acceptable, invasive but that treatment is that is generally unnecessary . . . ." This medically 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. ¶39 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. continued to Mr. Spencer suffer. He had his sought 21 kneecap the advice removed, of a but he different 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. doctor, who recommended an arthrodesis.22 disagreed, necessary. saying such a procedure the arthrodesis rejected payment of was not would not be reasonably decision, ruling The administrative agency reasonably expenses Spencer, 55 Wis. 2d at 527–28. agency's His original doctor Nonetheless, Mr. Spencer opted for the arthrodesis, which left him with a stiff leg. found 2015AP1989 related necessary, to that and so procedure. The circuit court set aside the that "where an employee, in good faith, accepts the recommendation of treatment of one doctor, with whom disregard temporary another the doctor consequences total disagrees, of the treatment disability, increased commission (increased cannot period permanent of partial disability and the expense of the arthrodesis) because they find the treatment was either unnecessary or unreasonable." 532. Id. at 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 means." 2006). Arthrodesis is "[t]he stiffening of a joint by operative Arthrodesis, Stedman's Medical Dictionary (28th ed. 26 No. ¶40 The court of appeals subsequently 2015AP1989 considered an injured employee's situation that closely tracks that of Ms. Flug in City of Wauwatosa N.W.2d 882 (Ct. App. 1982). v. LIRC, 110 Wis. 2d 298, 328 There, a police officer had slipped off a curb while on duty, and incurred a compensable hip injury. Id. at 299. having a accident The officer's treating doctor diagnosed him as also pre-existing aggravated, carrier's doctor aggravated nor hip and condition recommended disagreed, accelerated his surgery. opining the that that The the preexisting work-related fall [] insurance "had not condition, but merely brought the condition to the attention of the surgeon." Id. The hearing examiner resolved the disputed against the officer, finding no aggravation. testimony The Commission disagreed, and so awarded benefits related to the surgery for the pre-existing, but aggravated, hip injury. circuit court affirmed, citing Spencer. acknowledged that the key question Id. at 300. The The court of appeals 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 LIRC, Finally, we consider Honthaners Restaurants, Inc. v. 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. sought year benefits for an additional 27 of She subsequently treatment. The No. Commission found that she had been "overdiagnosed 2015AP1989 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 the that City of Wauwatosa on basis "[i]n parties disputed medical treatment, not cause." Spencer, Id., ¶21. the 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. the courts of this state. 2015AP1989 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." represent a Compensation Nelson, 174 Wis. 2d at 302. significant system "a step blanket towards making insurance And it would the policy to Worker's 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. understanding of this statute Thus, we will not adopt an 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. IV. ¶43 2015AP1989 CONCLUSION We hold today that an employee is not eligible for benefits under Wis. Stat. § 102.42(1m) if the disability-causing treatment was employee's directed compensable at treating injury. something Because Ms. other Flug's than the 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 reversed and the case is dismissed. 30 of the court of appeals is No. ¶44 review PATIENCE DRAKE ROGGENSACK, C.J. arises from an unpublished 2015AP1989.pdr (dissenting). decision of the This 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 pursuant alleviate to Wis. that Stat. pain, is entitled § 102.42(1m) if to she compensation 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. ¶47 facts. BACKGROUND The majority opinion ably sets forth the underlying 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. diagnosed Flug with "[r]ight arm and Dr. Morissette shoulder possible relation to the cervical spine itself." strain with 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. 2 She developed 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 with On April 2, 2013, Flug had a follow-up appointment Dr. Floren Floren and recommended said a that steroid her pain was injection, not which improving. 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. recommended Dr. Perez surgery to recommended alleviate Flug her undergo pain. an Dr. Perez Specifically, "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. 2013, Dr. Floren allowed Flug to return to work on July 17, but gave Eventually, that her a twenty-pound restriction was lifting increased to restriction. thirty-pounds before being eliminated entirely in November 2013. ¶54 Initially, disability benefits. Wal-Mart paid However, 3 Flug worker's subsequent to compensation Flug's surgery, No. Wal-Mart retained conduct an Dr. Soriano its own independent concluded physician, review that the of notified Flug that it Morris Flug's surgery treat Flug's work-related injury. Mart Dr. 2015AP1989.pdr was Soriano, medical not to records. necessary to Based on these findings, Wal- was terminating her disability benefits as of June 22, 2013. ¶55 claim On August 16, 2013, Flug filed a worker's compensation against Development. Wal-Mart with the Department of Workforce 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 recommended a surgery cervical to disability, eliminate her which pain. required In the 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. ¶58 2015AP1989.pdr 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. granted review. We 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 question of law that we generally review independently. a 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 which statutory interpretation by LIRC to 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, § 102.42(1m) under interpretation. I interpret and well-established apply principles Wis. of Stat. statutory 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 ordinarily stop the inquiry.'" the statute is Id., ¶45 (quoting plain, we 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, phrases except are meaning." that given technical their or specially-defined technical or special words or definitional Id. (citing Bruno v. Milwaukee Cty., 2003 WI 28, ¶¶8, 20, 260 Wis. 2d 633, 660 N.W.2d 656). ¶67 Id., ¶46. Additionally, "[c]ontext is important to meaning." 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 closelyrelated statutes; and unreasonable results." reasonably, Id. to avoid absurd or 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 Wis. 2d 173, 180, 290 N.W.2d 276 (1980)). Corp., 95 "However, in exchange for this guarantee, the employee is obliged to accept a limited and scheduled omitted). compensation award." Id. (internal quotations "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. ¶70 2015AP1989.pdr 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 § 102.03(1)(c)1. "employer shall psychological, his or And, her under supply such podiatric, employment." Wis. Stat. medical, dental, Wis. § 102.42(1), surgical, and Stat. an chiropractic, 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." ¶71 § 102.42(1). 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. ¶72 liable Wisconsin for invasive See, e.g., Wis. Stat. § 102.42(1m). Stat. disability treatment § 102.42(1m) indemnity that is when later 4 renders an an employee discovered to employer undergoes have been 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. unnecessary to treat the work-related 2015AP1989.pdr 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: injury; (2) good treatment; faith (3) medically (1) a compensable (work-related) in undertaking acceptable invasive treatment medical that is unnecessary for the work-related injury; (4) disability incurred because of the treatment. ¶74 Here, LIRC does § 102.42(1m). 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." which an employer is liable And the types of injuries for are enumerated in Wis. Stat. § 102.03. ¶75 Good interpretation faith of is Wis. the touchstone Stat. of § 102.42(1m). a plain meaning 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 obligation to legislature the has employee's tied the employee's undertaking good invasive faith treatment because good faith modifies the verb "undertakes" pursuant to the plain meaning § 102.42(1m). of the terms employed in Wis. Stat. ("If an employee . . . undertakes in good faith invasive treatment.") 11 No. ¶79 2015AP1989.pdr Moreover, the employee's treatment must be generally medically acceptable, work-related but injury. mandate that reason; it the unnecessary Wisconsin treatment requires only be that to Stat. treat be compensable § 102.42(1m) unnecessary it a for unnecessary does any to not medical treat a compensable injury. ¶80 Finally, the employee must show that treatment resulted in the employee's disability. the invasive 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. employee acts with a good faith However, as long as an 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. good faith obligation protects employers from an This 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 treating the medical physicians to treatment alleviate that was on-going recommended pain should by 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 belief invasive, that the unnecessary compensatory treatment injury is with being a good faith 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 disabilitycreating treatment turns out not to have been necessary to treat her compensable injury, she still receives disability benefits 5 Majority op. ¶¶32-33. insofar as the invasive disability. 6 The statute requires causation only treatment must have caused the See majority op., ¶¶31, 32. 13 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 liability."8 not qualify under the statute's extension Is this because the majority opinion's reasoning requires that the work-related injury caused the treatment? majority of opinion would permit recovery under Wis. The 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 § 707.57(1)."). ¶86 related In who caused unreasonable results. statutes in results"). an a claim under [Wis. Stat.] It chose not to do so. addition, injury bring such a requiring the an employee invasive show treatment the would work- lead to See Kalal, 2004 WI 58, ¶46 (we interpret way as "to avoid absurd or unreasonable It would force an employee to know, at the time of 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 medical We do not expect lay people to have knowledge of when 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." and based Id. at 532. on good Spencer was predicated on good faith; 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. Spencer, the supreme court treatment and expenses that allowed were 2015AP1989.pdr recovery incurred for when medical 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 the In the present case, Flug provided proof to the ALJ in form of Dr. Floren Dr. was Floren's one of written her report treating and she testified. 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 workrelated injury on February 14, 2013. Furthermore, it is undisputed that her pain continued as she went from health care provider to health care provider 17 in search of effective No. treatment for pain and the pain continued 2015AP1989.pdr until after she underwent a discectomy on June 4, 2013. ¶92 Dr. Soriano's report opines that unnecessary to treat her work-related injury. surgery was 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 injury Moreover, Dr. Soriano's opinion that the work-related did relevance. invasive not necessitate invasive treatment is of no Dr. Soriano's opinion speaks to whether the need for 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 February 14, 2013. suffered since her work-related injury on 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, § 102.42(1m)'s a satisfied criteria. related) injury. underwent Flug She most sustained a of Wis. Stat. compensable (work- Based on medical advice to treat pain, she 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. 18 If No. 2015AP1989.pdr she undertook the discectomy with the good faith belief that it would treat her work-related requires nothing more. injury, Wis. Stat. § 102.42(1m) 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. ¶96 CONCLUSION I conclude that Flug, who has sustained a compensable (work-related) injury from which began a continuing course of pain and doctors pursuant who to underwent alleviate to Wis. surgery that Stat. upon pain, is the advice entitled § 102.42(1m) if to she of medical compensation 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. the Therefore, I would remand the matter to LIRC to make requisite finding and complete its obligations the court under § 102.42(1m). ¶97 Accordingly, I would affirm 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. which it arises, I respectfully opinion. 20 dissent from 2015AP1989.pdr the majority 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. is the decision we It is dated February 23, 2015, and it 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 appeal, now conclusion of Department argues law of Justice, representing that although LIRC was supposed to it misstated be reviewing, LIRC the on only 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 Soriano's cannot report be any because as factual stated finding above, the based LIRC on Dr. 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: 2013, aggravated progressively and whether the event of February 14, accelerated deteriorating beyond normal condition. In progression doing so, a 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 medical a new opinions hearing and so then, that based it can on weigh those the competing 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 referred her to treatment, Dr. Floren her primary care physician, who an occupational specialist, Dr. Andrew Floren. ¶114 After referred Ms. a two Flug Eduardo Perez. disease and for He that month an that discectomy and by a neurosurgeon, had she and levels in the cervical spine. have surgery. of evaluation found a period a degenerative fusion was needed at Dr. disc two Dr. Perez recommended that she He "discussed all these findings with Ms. Flug," "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. good news for Ms. Flug. ¶117 After compensation Ms. carrier That's the Now the bad news. Flug underwent hired independent medical exam. Dr. surgery, Morris the Soriano to worker's do an 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. stated that statement, he observing examination, surgery; "strongly and which that disagree[d]" "[t]he radiologic decision with patient's studies all also shown opinions in was Dr. Soriano's history, support He clinical her appropriate need of by her response to that surgery." ¶119 Competing medical cases are standard fare. event of February condition. 14, worker's compensation Ms. Flug does not contend that the 2013, caused Of course it did not. her degenerative spinal 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). aggravation and acceleration beyond normal progression The 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 however, it relied on neither. Dr. Floren and Dr. Soriano, 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 with C6-7 disk C7 osteophyte radiculopathy complex disk disease at the C5-6 level." and associated degenerative 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 surgery was not her compensable injury." "object of Ms. Flug's 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." of She continued this argument in the court appeals, Commission which acted respects." explained in excess that of "Flug its argues powers in the three 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? well-settled that "when a decision by LIRC It is 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 acknowledges is advanced here. Ms. Flug's arguments as "a what the majority The majority describes 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 through oral argument here." this position even The basis of Ms. Flug's argument is that LIRC's decision was not supported by the relevant relevant evidence medical of record: testimony "She establishes says that the 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." ¶129 Majority op., ¶19. 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 true argument is the majority that her acknowledges surgery was that Ms. necessitated Flug's 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. contends that it argument regarding is precluded the nature nonexistent findings of fact. from of The majority addressing her injury Ms. Flug's because of 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."). that "Ms. Flug's argument [is] beyond our reach." It declares 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 [percent]'". paints makes doing 'excellent' Majority op., ¶4. the reader disability whatsoever. wonder and feeling 'almost 100 The picture that the majority whether Ms. Flug has any 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 No. 2015AP1989.awb 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 potential for reliance on Dr. Soriano's report. any 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 C6/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). 12 Exhibit, No. 2015AP1989.AWB 1 Exhibit, No. 2015AP1989.AWB 2 Exhibit, No. 2015AP1989.AWB 3 Exhibit, No. 2015AP1989.AWB 4 Exhibit, No. 2015AP1989.AWB 5 Exhibit, No. 2015AP1989.AWB 6 Exhibit, No. 2015AP1989.AWB 7 Exhibit, No. 2015AP1989.AWB 8 Exhibit, No. 2015AP1989.AWB 9 Exhibit, No. 2015AP1989.AWB 1
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