The decision of the Wisconsin Supreme Court in Flug v. LIRC, 2017 WI 72 (decided on June 30, 2017), is a clear win for the employer side in cases involving pre-existing degenerative conditions that lead to surgery.
In Flug, a retail store supervisor was changing merchandise prices with the use of a hand-held scanner when she experienced pain in her neck radiating down her right arm. The respondent accepted compensability at the start and paid for medical expenses and TTD.
The petitioner ultimately underwent a discectomy in the cervical spine. Her post-surgical disability rating was rated at 22% body as a whole.
After surgery, the respondent obtained an IME. The IME physician opined that the work accident caused only a temporary neck strain, and not the need for surgery and its resulting permanent disability. Diagnostic testing prior to surgery had revealed pre-existing degenerative arthritis in the cervical spine.
The ALJ, LIRC, and Circuit Court ruled in favor of the employer. The Wisconsin Court of Appeals remanded the case to the LIRC to assess whether the petitioner undertook surgery in good faith.
The Wisconsin Supreme Court held that “[b]ecause Ms. Flug’s surgery treated her pre-existing condition, not her compensable injury, her claim must be disallowed.” The majority further held that “. . . an employee is not eligible for benefits under Wis. Stat. § 102.42(1m) if the disability-causing treatment was directed at treating something other than the employee’s compensable injury.”
This case highlights the importance for employers to seek post-surgical IMEs in cases involving documented pre-existing arthritis prior to surgery. Thanks to Partner Scott McCain for bringing this study to our attention. Scott works out of the Chicago and Milwaukee offices of Inman and Fitzgibbons. If you have any questions about workers’ compensation claims in Wisconsin , please feel free to reach out to Scott.