2017 WI 72

SUPREME COURT OF WISCONSIN

CASE NO.: 2015AP1989

COMPLETE TITLE: 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(2016 – Unpublished)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: June 30, 2017

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: March 15, 2017

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Chippewa

JUDGE: 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. Oral argument by Jennifer l. Vandermeuse.

For the defendants-respondents-petitioners Wal-Mart 

Associates, Inc. and New Hampshire Insurance Company c/o Claims 

Management, Inc., there were briefs filed by Ryan J. Steffes and 

Weld Riley, S.C., Eau Claire. Oral argument by Ryan J. Steffes.
2

For the plaintiff-appellant, there was a brief and oral 

argument by Jeffrey J. Klemp and Law Offices of Jeffrey Klemp, 

Eau Claire.
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,

 v.

Labor and Industry Review Commission, Wal-Mart 

Associates, Inc. and New Hampshire Insurance 

Company c/o Claims Management, Inc.,

 Defendants-Respondents-Petitioners.

FILED

JUN 30, 2017

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 DANIEL KELLY, J. Tracie L. Flug suffered from two 

medical conditions——a soft-tissue strain, and a degenerative 

disc disease. The first was work-related (and has since 

resolved), the second is not. She underwent surgery in the 

belief it was necessary to treat her work-related soft-tissue 

strain. In actuality, it was treating the unrelated 

degenerative disc disease. The procedure left her with a 

permanent partial disability. Ms. Flug tells us Wal-Mart (her 

employer) must compensate her for this permanent partial 
No. 2015AP1989

2

disability because she believed, in good-faith, that the 

disability-causing surgery was necessary to treat her workrelated condition. 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. Ms. Flug's Injury and Surgery

¶2 Ms. Flug worked as a store supervisor at the Chippewa 

Falls Wal-Mart. In February of 2013 she was using a 25-ounce 

price scanner in the store's shoe department. After scanning an 

item above her head, she felt pain in her neck and right arm as 

she lowered the scanner. Ms. Flug sought medical treatment from 

Dr. Sabina Morissette. Dr. Morissette diagnosed Ms. Flug with a 

"right arm and shoulder strain with possible relation to the 

cervical spine itself."

¶3 Ms. Flug was referred to Dr. Andrew Floren, an 

occupational medicine specialist, with whom she met the 

following month. Dr. Floren's notes state that on the date of 

her injury Ms. Flug "developed a severe sudden pain in her right 

upper back area. This pain went down the posterior shoulder and 

arm to the wrists." At the time of the visit, Ms. Flug stated 

that her symptoms were "slowly resolving," but that she had an 

"aching burning pain in her upper back" that "radiat[ed] into 

the posterior right shoulder and down the arm just a bit." Dr. 

Floren also noted that a cervical spine x-ray showed "mild 

degenerative changes," but he drew no connection between that 

condition and her work injury. He concluded that Ms. Flug had 
No. 2015AP1989

3

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. Ms. Flug's Application for Benefits

¶5 Wal-Mart agreed that Ms. Flug had suffered a workrelated injury, and its worker's compensation insurance carrier 

paid medical expenses up to May 9, 2013, and disability benefits 

up to June 22, 2013. But because the insurance carrier did not 

agree the degenerative disc disease was attributable to Ms. 

Flug's work injury, it refused further compensation for medical 

expenses or disability benefits.

¶6 Ms. Flug filed her worker's compensation claim with 

the Wisconsin Department of Workforce Development on August 16, 

2013. She sought compensation from Wal-Mart for continuing 

medical expenses, additional temporary disability benefits 
No. 2015AP1989

4

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 degeneration, however, was an entirely 

different matter. Dr. Soriano said this was a pre-existing 

condition and there was never any anatomical or medical 

relationship between it and Ms. Flug's soft-tissue strain. In 

fact, he said "[i]t is not probable or even possible that the 

accident of February 14, 2013, [caused Ms. Flug's] disc 

degeneration." Considering the nature of the work Ms. Flug was 

performing at the time of her injury, Dr. Soriano also said 

"[i]t is not probable or even possible that reaching up with a 
No. 2015AP1989

5

25-ounce scanner over a period of time" could have "cause[d] any 

disability by precipitating, aggravating or accelerating the 

preexisting condition." He also noted that Dr. Floren had 

offered no objective evidence of any cervical disability related 

to the accident. He concluded, therefore, that the surgery was 

not "reasonable, necessary or related" to Ms. Flug's work 

injury.

C. Review of Ms. Flug's Claim

¶10 On April 1, 2014, an Administrative Law Judge held a 

hearing on Ms. Flug's claims. Dr. Floren submitted a report and 

addendum stating that although Ms. Flug's work activities had 

not caused her degenerative condition, it was "medically 

probable" that they precipitated, aggravated, or accelerated 

that preexisting condition beyond its normal progression. Dr. 

Floren found the surgery and all medical treatment received 

since February 14, 2013, reasonable and necessary to treat the 

consequences of Ms. Flug's work-related injury.

¶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." Dr. Soriano also said "[i]t is not physically 

possible that scanning a product on a shelf could have 

aggravated or worsened two levels of a previously arthritic 
No. 2015AP1989

6

condition at C5-C6 and C6-C7 to the point where it became 

symptomatic," and that the surgery "clearly ha[d] no 

relationship to any documentable, repetitive, objective 

neurological findings."

¶12 The ALJ1 acknowledged that Ms. Flug suffered an injury 

at work, but said there was a "legitimate doubt as to the 

compensability of the claim as a traumatic injury beyond that 

already conceded and paid by [Wal-Mart]." Because the ALJ 

concluded Ms. Flug had already received all compensation due to 

her prior to the surgery, he dismissed the claim. Ms. Flug 

appealed the ALJ's determination, following which the Commission 

adopted the ALJ's factual findings and order as its own. The 

Commission affirmed the ALJ's decision stating specifically that 

Ms. Flug was not entitled to permanent partial disability 

benefits because the ALJ had expressed a "legitimate doubt as to 

whether [Ms. Flug] suffered any work injury."

¶13 Ms. Flug sought review of the Commission's decision in 

the Chippewa County circuit court. There, the Commission 

recognized and admitted it had mistakenly concluded the ALJ had 

found no work injury at all. It argued the court should 

nonetheless affirm the Commission's decision because Ms. Flug's 

surgery was unrelated to her compensable injury. The circuit 

court2 assumed the existence of Ms. Flug's workplace injury, but 

 

1 Roy L. Sass, presiding.

2 The Honorable James M. Isaacson, presiding.
No. 2015AP1989

7

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 opinion, the court of appeals 

reversed the circuit court.3 Its analysis focused on whether the 

disability-creating treatment must be undertaken to treat a 

compensable injury to qualify the employee for benefits. Based 

on its reading of Wis. Stat. § 102.42(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 The Commission's timely petition for review presented 

this single issue: "Does Wis. Stat. § 102.42(1m) make an 

employer liable for disability resulting from invasive 

treatment, when the claimant has not established that the 

treatment in fact treated a compensable work injury?" We 

granted the petition, and now affirm the Commission's 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.
No. 2015AP1989

8

II. STANDARD OF REVIEW

¶16 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 findings of fact, however, are 

normally beyond question: "The findings of fact made by the 

commission acting within its powers shall, in the absence of 

fraud, be conclusive." Wis. Stat. § 102.23(1)(a)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.
No. 2015AP1989

9

III. ANALYSIS

¶18 Whether Ms. Flug is entitled to compensation depends 

on how 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. They 

disagree on what it means for a treatment to be "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 
No. 2015AP1989

10

as the employee had a good faith belief that it was. Flug, No. 

2015AP1989, ¶32 ("[W]e conclude that, to establish good faith 

under Wis. Stat. § 102.42(1m), an employee must show that he or 

she reasonably believed the proposed treatment was both 

necessary and the result of a compensable injury."). Thus, the 

court of appeals held that this statute can make an employer 

liable for benefits even when the injury and its treatment had 

nothing to do with the workplace.

¶20 Contrary to what one might expect, Ms. Flug's argument 

neither directly refutes the Commission's position, nor 

champions the court of appeals' analysis.6 Whereas both the 

Commission and the court of appeals base their competing 

analyses on the shared understanding that Ms. Flug's surgery had 

nothing to do with her compensable injury, Ms. Flug does not.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.
No. 2015AP1989

11

treatment of a compensable injury: "The key to the statute is 

whether the injured employee undergoes surgery for a compensable 

injury in good faith——here, reasonably believing, based on her 

doctors' advice, that it was necessary to cure and relieve Flug 

from the continuing symptoms that began with her work injury." 

She says the relevant medical testimony establishes that "[t]he 

surgery, undertaken for the injury, was 'reasonable and 

necessary to cure and relieve' [her] from the effects of 

cervical disability which began at work."

¶21 Out of the several cases Ms. Flug addressed in her 

argument, there are two that provide particularly helpful 

insight on the nature of her argument. The first is Spencer v. 

LIRC, 55 Wis. 2d 525, 200 N.W.2d 611 (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" and we observed the 

 

8 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).
No. 2015AP1989

12

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 second case providing insight on Ms. Flug's 

argument is City of Wauwatosa v. LIRC, 110 Wis. 2d 298, 328 

N.W.2d 882 (Ct. App. 1982). Her treatment of this case confirms 

that she believes her dispute with the Commission is about the 

extent of available benefits consequent upon treatment of a 

compensable injury, not about whether benefits are available 

when there is no relationship between the disability-causing 

treatment and her compensable injury. The City of Wauwatosa

court denied benefits because there was no connection between 

the employee's treatment and his compensable injury. The court 

concluded that "the Spencer rationale applies only to cases 

involving treatment for an undisputed compensable industrial 

injury." Id. at 301. In a particularly revealing passage in 

Ms. Flug's brief, she said this case "is not helpful in our 

 

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.
No. 2015AP1989

13

analysis because it doesn't address the extent of treatment 

undertaken, in good faith, for a compensable injury."

¶23 Thus, Ms. Flug's argument assumes her surgery was, in 

fact, "for" the compensable injury, and that the real 

controversy is over how much treatment was necessary to relieve 

her of the symptoms caused by that injury.10 Ms. Flug's 

assumption, however, is not warranted. The ALJ and the 

Commission found——as a factual matter——that the surgery didn't 

treat Ms. Flug's compensable injury.11 Thus, because the 

Commission eliminated the factual predicate for Ms. Flug's 

argument, we would not be able to engage it unless we first 

rejected the Commission's findings on this point. Ms. Flug does 

not assert the findings of fact are the result of fraud, or that 

the Commission acted outside of its powers, so the findings are 

 

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.
No. 2015AP1989

14

conclusive.12 And that puts Ms. Flug's argument 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 ALJ and Commission's 

factual findings. Justice Ann Walsh Bradley's dissent, ¶¶107-

10. The relevant facts, however, are just not that complicated. 

For purposes of this analysis, we must know whether the ALJ and 

the Commission believed the surgery addressed Ms. Flug's 

compensable injury, or instead her pre-existing condition. The 

ALJ found no injury beyond that for which Wal-Mart had already 

 

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.
No. 2015AP1989

15

compensated Ms. Flug. He said there was "a legitimate doubt as 

to the compensability of the claim as a traumatic injury beyond 

that already conceded and paid by the respondents." Flug v. 

Wal-Mart Assocs. Inc., No.2013-006010, at 4 (LIRC Apr. 30, 2014) 

(Sass, ALJ). The ALJ also rejected the argument that her 

workplace activity caused the injury the surgery treated. Id.

("While Dr. Floren also reported the appreciable workplace 

exposure was causative, this was not developed at hearing 

particularly given the inconsistency in history of 

injury . . . ."). There were only two medical conditions at 

issue, and if the workplace activity did not cause the injury 

the surgery treated, then by process of elimination we can 

confidently conclude that the surgery treated Ms. Flug's preexisting condition. This is also the Commission's 

determination: "Based on its review, the commission agrees with 

the decision of the ALJ, and it adopts the findings and order in 

that decision as its own." Flug v. Wal-Mart Assocs., Inc., WDC 

No. 201300610 (LIRC Feb. 23, 2015). If there is a procedural 

morass here, it's not bad enough to keep us from doing 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)
No. 2015AP1989

16

B. What it Means to be "Unnecessary"

¶25 Still, we must determine what it means for a treatment 

to 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 We begin 

with the statutory language. State ex rel. Kalal v. Cir. Ct. 

for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 

("[S]tatutory interpretation 'begins with the language of the 

statute. If the meaning of the statute is plain, we ordinarily 

stop the inquiry.'" (quoting Seider v. O'Connell, 2000 WI 76, 

¶43, 236 Wis. 2d 211, 232, 612 N.W.2d 659)). We understand the 

language "in the context in which it is used; not in isolation 

but as part of a whole; in relation to the language of 

surrounding or closely-related statutes; and reasonably, to 

avoid absurd or unreasonable results." Id., ¶46. When this 

process produces a plain, clear meaning, we go no further. Id.

¶26 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.
No. 2015AP1989

17

guaranteeing benefits in the event of work-related injury [or] 

disease." Nelson v. Rothering, 174 Wis. 2d 296, 302, 496 

N.W.2d 87 (1993). It "provides a broadly applicable method for 

compensating persons who suffer work-related physical and mental 

injuries." Byers v. LIRC, 208 Wis. 2d 388, 395, 561 N.W.2d 678 

(1997). By relieving employers from tort liability, the 

Worker's Compensation program "mak[es] employers strictly liable 

for injuries encompassed within the Act, but limit[s] the 

liability to compensation established by the statute." Id. 

These limits are important because the program is not supposed 

to be "a blanket insurance policy to provide benefits for 

disabilities which may become manifest while on the job but are 

in no way caused by or related to the employment." Lewellyn v. 

Indus. Comm'n, 38 Wis. 2d 43, 61, 155 N.W.2d 678 (1968). It 

serves an important, but limited, purpose: "It was never 

intended to make the Workmen's Compensation Law an accident 

insurance or health insurance measure." Id. (quoting Newman v. 

Indus. Comm'n, 203 Wis. 358, 360, 234 N.W. 495 (1931)).

¶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, podiatric, dental, and hospital 

treatment . . . as may be reasonably required to cure and 
No. 2015AP1989

18

relieve from the effects of the injury . . . ." Wis. Stat. 

§ 102.42(1). An employer must also pay the employee benefits 

"if the injury causes disability." Wis. Stat. § 102.43. Thus, 

in the general scheme of the program, medical expenses and 

disability benefits are payable only when they are attributable 

to a qualifying injury.

¶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 invasive treatment that is generally medically 

acceptable, but that is unnecessary, the employer shall pay 

disability indemnity for all disability incurred as a result of 

that treatment." As we described above, we must discern the 

statutory relationship between Ms. Flug's pre-existing 

condition, her work-related injury, her surgery, and her partial 

permanent disability.

¶29 There are two logical ways of reading a statutory 

provision like Wis. Stat. § 102.42(1m). One can read it as a 

sentence (as it was written), paying attention to rules of 

grammar, syntax, and diction to tease out its meaning. Or one 

might dice it up into its constituent parts and treat each 

resulting element as an independent requirement that neither 

qualifies nor is qualified by the others. The court of appeals 

favored the second approach. It said Ms. Flug is entitled to 

disability benefits if she meets five distinct elements, which 

it defined as follows:
No. 2015AP1989

19

(1) the employee sustained a compensable injury; 

(2) he or she undertook invasive medical treatment; 

(3) the treatment was undertaken in good faith; 

(4) the treatment was generally medically acceptable, 

but unnecessary; and 

(5) the employee incurred a disability as a result of 

the treatment.

Flug, No. 2015AP1989, ¶30. This, of course, is not what the 

legislature wrote. It is simply how the court of appeals chose 

to frame its analysis. While this is a legitimate method of 

approaching statutory language, it does present peculiar risks. 

When translating a sentence into discrete elements, it is easy 

to lose critical information by neglecting to propagate the 

proper relationship between the parts of the sentence into the 

list. And that is what 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. This relegated the "compensable 

injury" provision to a mere gatekeeper role that, once 

satisfied, could be ignored for the balance of the analysis. 

Consequently, the court of appeals' translation was outcomedeterminative.15 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. Chief Justice 

Roggensack's dissent, ¶87.
No. 2015AP1989

20

injury and the treatment. So when the Commission asserted a 

necessary link between the two, the court of appeals criticized 

the argument as "read[ing] an additional causation requirement 

into the statute." It did not say why the Commission's posited 

relationship between the treatment and the compensable injury 

was inapposite, as a textual matter, other than by referring to 

how it had diced the statutory language. It is true that the 

Commission's asserted relationship finds no reflection in the 

court of appeals' analytical construct, but that is a fault only 

if the court of appeals accurately translated the statute into a 

list of elements. That is the question we must now answer.

¶31 Instead of separating the statute into separate 

elements, we will analyze the sentence as written, using our 

standard toolbox to help us derive its meaning. The court of 

appeals properly recognized the centrality of "treatment" to the 

meaning of the statute——the term appears in four of the five 

elements it culled from the statutory language. So some 

attention to the dictional provenance of this term will help us 

determine its proper place and function in the statute. 

"Treatment" is the nominal form of the verb "to treat." 

"Treat," of course, is a transitive verb, which means it 

requires a direct object on which to act. That is, one does not 

simply "treat," one treats something——a person, a condition, a 

disease, etc. Nominalizing the verb doesn't remove its 

transitive property: "Treatment" is the "[a]dministration or 
No. 2015AP1989

21

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. It is plausible, both textually and logically, that the 

employee could be the object of the term "treatment." The 

phrase "who has sustained a compensable injury" could be 

understood as simply identifying the employee who undertook the 

treatment, leaving "employee" as the only possible object of the 

"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 of The 

English Language (3d ed. 1992) (emphases added).

17 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.
No. 2015AP1989

22

says this: "If an employee who has sustained a compensable

injury undertakes . . . invasive treatment that is generally 

medically acceptable, but that is unnecessary . . . ." The 

requirement that the treatment be "generally medically 

acceptable," on its own, could direct us with equal ease to 

either the employee or the compensable injury, and so it 

provides no help in identifying the object on which it is to 

operate; we will return to it later. The phrase "but that is 

unnecessary," on the other hand, tells us that the object of the 

treatment must be the compensable injury.

¶34 Ms. Flug tells us she fits within the statute because 

the treatment——her surgery——was unnecessary. But unnecessary to 

what? If the object of the treatment is the employee (as 

opposed to the compensable injury), then it wasn't unnecessary 

at all. In fact, it was quite the opposite. Ms. Flug herself 

reported that the treatment brought her back to nearly 100 

percent. Neither Ms. Flug nor the court of appeals has 

explained how a treatment can be that effective while 

simultaneously being unnecessary. If, on the other hand, the 

statute makes the object of the treatment the compensable 

injury, then one must determine whether the treatment was 

directed——as a factual matter——at that particular injury. 

Either way, Ms. Flug's claim must end here. If the object of 

"treatment" is the employee, Ms. Flug cannot succeed because the 

treatment was clearly necessary——it cured her condition. If, 

instead, the object of "treatment" is the compensable injury, 

she can proceed no further because the Commission has already 
No. 2015AP1989

23

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 because it was not treating the 

compensable injury. However, there is no grammatical rule that 

allows the object of the treatment to flicker like that.

¶36 We return now to the requirement that the treatment in 

question be "generally medically acceptable." Because the 

phrases "generally medically acceptable" and "but that is 

unnecessary" both act as delimiters on the term "treatment," the 

treatment must partake of both qualities. And because we have 

already concluded that the proper object of "treatment" is the

 

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.
No. 2015AP1989

24

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." And although it does not budge 

"compensable injury" from its place as the object of 

"treatment," it is important to a complete understanding of how 

the statute functions. The portion of Wis. Stat. § 102.42(1m) 

that describes eligibility for benefits says, in full: "If an 

employee who has sustained a compensable injury undertakes in 

good faith invasive treatment that is generally medically 

acceptable, but that is unnecessary . . . ." This provision 

exists against the backdrop of a Worker's Compensation program 

that requires payment of medical expenses only to the extent 

they are "reasonably required" to "cure and relieve from the 

effects of the [compensable] injury,"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.
No. 2015AP1989

25

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. This opinion fits neatly into our canon.

¶39 Spencer addressed itself to an employee who injured 

his knee while on the job; everyone agreed he was entitled to 

compensation. Mr. Spencer had his kneecap removed, but he 

continued to suffer. He sought the advice of a different 

 

21 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.
No. 2015AP1989

26

doctor, who recommended an arthrodesis.22 His original doctor 

disagreed, saying such a procedure would not be reasonably 

necessary. Nonetheless, Mr. Spencer opted for the arthrodesis, 

which left him with a stiff leg. The administrative agency 

found the arthrodesis was not reasonably necessary, and so 

rejected payment of expenses related to that procedure. 

Spencer, 55 Wis. 2d at 527–28. The circuit court set aside the 

agency's decision, ruling that "where an employee, in good 

faith, accepts the recommendation of treatment of one doctor, 

with whom another doctor disagrees, the commission cannot 

disregard the consequences of treatment (increased period of 

temporary total disability, increased permanent partial 

disability and the expense of the arthrodesis) because they find 

the treatment was either unnecessary or unreasonable." Id. at 

532. We agreed with the circuit court, and held that "[t]he 

employer is responsible for the consequences not only of the 

injury, but the treatment." Id. Although not explicit, our 

juxtaposition of "injury" and "treatment" in that sentence can 

lead to no conclusion but that the treatment we were considering 

was for the compensable injury. Because we conclude today that 

the "treatment" identified in Wis. Stat. § 102.42(1m) must treat 

the compensable injury to qualify for benefits, our holding is 

consistent with what we said in Spencer.

 

22 Arthrodesis is "[t]he stiffening of a joint by operative 

means." Arthrodesis, Stedman's Medical Dictionary (28th ed. 

2006).
No. 2015AP1989

27

¶40 The court of appeals subsequently considered an 

injured employee's situation that closely tracks that of Ms. 

Flug in City of Wauwatosa v. LIRC, 110 Wis. 2d 298, 328 

N.W.2d 882 (Ct. App. 1982). There, a police officer had slipped 

off a curb while on duty, and incurred a compensable hip injury. 

Id. at 299. The officer's treating doctor diagnosed him as also 

having a pre-existing hip condition that his work-related 

accident aggravated, and recommended surgery. The insurance 

carrier's doctor disagreed, opining that the fall "had not 

aggravated nor accelerated the preexisting [] condition, but 

merely brought the condition to the attention of the surgeon." 

Id. The hearing examiner resolved the disputed testimony 

against the officer, finding no aggravation. The Commission 

disagreed, and so awarded benefits related to the surgery for 

the pre-existing, but aggravated, hip injury. Id. at 300. The 

circuit court affirmed, citing Spencer. The court of appeals 

acknowledged that the key question was whether Spencer

controlled, but concluded that our holding in that case "applies 

only to cases involving treatment for an undisputed compensable 

industrial injury." Id. at 301. The court of appeals was 

correct, and its conclusion is reflected in our holding here.

¶41 Finally, we consider Honthaners Restaurants, Inc. v. 

LIRC, 2000 WI App 273, 240 Wis. 2d 234, 621 N.W.2d 660. An 

employee suffered a compensable injury to her arm, and received 

disability benefits for just under six months as well as accrued 

medical expenses during that period. Id., ¶3. She subsequently 

sought benefits for an additional year of treatment. The 
No. 2015AP1989

28

Commission found that she had been "overdiagnosed and overtreated," because she continued to receive treatments long after 

her compensable injury had resolved. However, because she had 

sought the extended treatment in "good faith," the Commission 

said she was entitled to continued benefits. Id., ¶7. Agreeing 

with the Commission, the court of appeals said "Spencer teaches 

that as long as the claimant engaged in the unnecessary and 

unreasonable treatment in good faith, the employer is 

responsible for payment." Id., ¶15. It distinguished Spencer

and City of Wauwatosa on the basis that "[i]n Spencer, the 

parties disputed medical treatment, not cause." Id., ¶21. The 

court of appeals concluded that the Spencer rule applied because 

the treatment the employee received was directed at her

compensable injury, even though it turned out not to have been 

necessary. Comparing the employee's situation to Spencer, the 

Honthaners Restaurant court said: 

Both cases involve no dispute that the claimants 

suffered a compensable injury. Both deal with 

differing medical opinions on diagnosis and treatment. 

Both cases have a claimant who continued the 

unnecessary treatment in good faith. Thus, we conclude 

the Commission properly relied on Spencer and [the 

employee] is entitled to additional benefits.

Id., ¶22. That conclusion is consistent with our holding today, 

which requires that the treatment in question was directed at 

the compensable injury.

* * *

¶42 Our opinion today tracks the language of Wis. Stat. 

§ 102.42(1m) and is consistent with prior opinions delivered by 
No. 2015AP1989

29

the courts of this state. It is also consistent with the nature 

of Wisconsin's Worker's Compensation system. Indeed, any other 

conclusion would represent a sharp break with the "legislatively 

enacted compromise" between employers and employees for the 

payment of expenses and benefits consequent upon "work-related 

injury [or] disease." Nelson, 174 Wis. 2d at 302. And it would 

represent a significant step towards making the Worker's 

Compensation system "a blanket insurance policy to provide 

benefits for disabilities which may become manifest while on the 

job but are in no way caused by or related to the employment." 

Lewellyn, 38 Wis. 2d at 61. There is nothing in the text of 

Wis. Stat. § 102.42(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. Thus, we will not adopt an 

understanding of this statute that would extend employer 

liability to injuries and diseases that have nothing to do with 

the workplace.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.
No. 2015AP1989

30

IV. CONCLUSION

¶43 We hold today that an employee is not eligible for 

benefits under Wis. Stat. § 102.42(1m) if the disability-causing 

treatment was directed at treating something other than the 

employee's compensable injury. Because Ms. Flug's 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 of the court of appeals is 

reversed and the case is dismissed.
No. 2015AP1989.pdr

1

¶44 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). This 

review arises from an unpublished decision of the 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 alleviate that pain, is entitled to compensation 

pursuant to Wis. Stat. § 102.42(1m) if she accepted the 

physician's advice and undertook surgery with the good faith 

belief that surgery would treat her work-related injury, even 

though surgery was unnecessary treatment for that injury. 

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). 
No. 2015AP1989.pdr

2

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. BACKGROUND

¶47 The majority opinion ably sets forth the underlying 

facts. 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 WalMart, 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. Dr. Morissette 

diagnosed Flug with "[r]ight arm and shoulder strain with 

possible relation to the cervical spine itself." 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. She developed 
No. 2015AP1989.pdr

3

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 On April 2, 2013, Flug had a follow-up appointment 

with Dr. Floren and said that her pain was not improving. 

Floren recommended a steroid injection, which 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. Dr. Perez 

recommended surgery to alleviate her pain. Specifically, 

Dr. Perez recommended Flug undergo an "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. Dr. Floren allowed Flug to return to work on July 17, 

2013, but gave her a twenty-pound lifting restriction. 

Eventually, that restriction was increased to thirty-pounds 

before being eliminated entirely in November 2013. 

¶54 Initially, Wal-Mart paid Flug worker's compensation 

disability benefits. However, subsequent to Flug's surgery, 
No. 2015AP1989.pdr

4

Wal-Mart retained its own physician, Dr. Morris Soriano, to 

conduct an independent review of Flug's medical records. 

Dr. Soriano concluded that the surgery was not necessary to 

treat Flug's work-related injury. Based on these findings, WalMart notified Flug that it was terminating her disability 

benefits as of June 22, 2013. 

¶55 On August 16, 2013, Flug filed a worker's compensation 

claim against Wal-Mart with the Department of Workforce 

Development. 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 a cervical disability, which required the 

recommended surgery to eliminate her pain. In 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. 
No. 2015AP1989.pdr

5

¶58 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. We 

granted review. 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).
No. 2015AP1989.pdr

6

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 a 

question of law that we generally review independently. 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 statutory interpretation by LIRC to which 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). 
No. 2015AP1989.pdr

7

a good faith belief that surgery would treat her work-related 

injury. 

¶65 Accordingly, I interpret and apply Wis. Stat. 

§ 102.42(1m) under well-established principles of statutory 

interpretation. 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 the statute is plain, we 

ordinarily stop the inquiry.'" Id., ¶45 (quoting 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, except that technical or specially-defined words or 

phrases are given their technical or special definitional 

meaning." Id. (citing Bruno v. Milwaukee Cty., 2003 WI 28, ¶¶8, 

20, 260 Wis. 2d 633, 660 N.W.2d 656). 

¶67 Additionally, "[c]ontext is important to meaning." 

Id., ¶46. As a result, "statutory language is interpreted in 

the context in which it is used; not in isolation but as part of 
No. 2015AP1989.pdr

8

a whole; in relation to the language of surrounding or closelyrelated statutes; and reasonably, to avoid absurd or 

unreasonable results." Id. 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 Corp., 95 

Wis. 2d 173, 180, 290 N.W.2d 276 (1980)). "However, in exchange 

for this guarantee, the employee is obliged to accept a limited 

and scheduled compensation award." Id. (internal quotations 

omitted). "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 . . . .").
No. 2015AP1989.pdr

9

¶70 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 his or her employment." Wis. Stat. 

§ 102.03(1)(c)1. And, under Wis. Stat. § 102.42(1), an 

"employer shall supply such medical, surgical, chiropractic, 

psychological, podiatric, dental, and 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." § 102.42(1). 

¶71 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. See, e.g., Wis. Stat. § 102.42(1m). 

¶72 Wisconsin Stat. § 102.42(1m) renders an employer 

liable for disability indemnity when an employee undergoes 

invasive treatment that is later discovered to have been 

 

4 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. 
No. 2015AP1989.pdr

10

unnecessary to treat the work-related 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: (1) a compensable (work-related) 

injury; (2) good faith in undertaking invasive medical 

treatment; (3) medically acceptable treatment that is 

unnecessary for the work-related injury; (4) disability incurred 

because of the treatment. § 102.42(1m). 

¶74 Here, LIRC does 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." And the types of injuries for 

which an employer is liable are enumerated in Wis. Stat. 

§ 102.03. 

¶75 Good faith is the touchstone of a plain meaning 

interpretation of Wis. Stat. § 102.42(1m). Stated more 

completely, whether the employee undertakes invasive treatment 
No. 2015AP1989.pdr

11

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 legislature has tied the employee's good faith 

obligation to the employee's undertaking invasive treatment 

because good faith modifies the verb "undertakes" pursuant to 

the plain meaning of the terms employed in Wis. Stat. 

§ 102.42(1m). ("If an employee . . . undertakes in good faith 

invasive treatment.") 
No. 2015AP1989.pdr

12

¶79 Moreover, the employee's treatment must be generally 

medically acceptable, but unnecessary to treat a compensable 

work-related injury. Wisconsin Stat. § 102.42(1m) does not 

mandate that the treatment be unnecessary for any medical 

reason; it requires only that it be unnecessary to treat a 

compensable injury. 

¶80 Finally, the employee must show that the invasive 

treatment resulted in the employee's disability. 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. However, as long as an 

employee acts with a good faith 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. This 

good faith obligation protects employers from an 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 
No. 2015AP1989.pdr

13

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 the medical treatment that was recommended by 

treating physicians to alleviate on-going pain should 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 invasive, unnecessary treatment with a good faith 

belief that the compensatory injury is being 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. The statute requires causation only 

insofar as the invasive treatment must have caused the 

disability. 

6 See majority op., ¶¶31, 32. 
No. 2015AP1989.pdr

14

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 not qualify under the statute's extension of 

liability."8 Is this because the majority opinion's reasoning 

requires that the work-related injury caused the treatment? The 

majority opinion would permit recovery under Wis. 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.
No. 2015AP1989.pdr

15

intend to impose the causation-of-pecuniary-loss requirement on 

private plaintiffs who bring a claim under [Wis. Stat.] 

§ 707.57(1)."). It chose not to do so. 

¶86 In addition, requiring an employee show the workrelated injury caused the invasive treatment would lead to 

unreasonable results. See Kalal, 2004 WI 58, ¶46 (we interpret 

statutes in such a way as "to avoid absurd or unreasonable 

results"). It would force an employee to know, at the time of 

an 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 We do not expect lay people to have knowledge of when 

medical 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 
No. 2015AP1989.pdr

16

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." Id. at 532. Spencer was predicated on good faith; 

and based on good 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.
No. 2015AP1989.pdr

17

Spencer, the supreme court allowed recovery for medical 

treatment and expenses that were incurred when 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 In the present case, Flug provided proof to the ALJ in 

the form of Dr. Floren's written report and she testified. 

Dr. Floren was one of her treating 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 in search of effective 
No. 2015AP1989.pdr

18

treatment for pain and the pain continued until after she 

underwent a discectomy on June 4, 2013. 

¶92 Dr. Soriano's report opines that surgery was 

unnecessary to treat her work-related injury. 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 Moreover, Dr. Soriano's opinion that the work-related 

injury did not necessitate invasive treatment is of no 

relevance. Dr. Soriano's opinion speaks to whether the need for 

invasive 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 suffered since her work-related injury on 

February 14, 2013. 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, Flug satisfied most of Wis. Stat. 

§ 102.42(1m)'s criteria. She sustained a compensable (workrelated) injury. Based on medical advice to treat pain, she 

underwent a 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. If 
No. 2015AP1989.pdr

19

she undertook the discectomy with the good faith belief that it 

would treat her work-related injury, Wis. Stat. § 102.42(1m) 

requires nothing more. 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. CONCLUSION

¶96 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 medical 

doctors to alleviate that pain, is entitled to compensation 

pursuant to Wis. Stat. § 102.42(1m) if she accepted the 

physician's advice and undertook surgery with the good faith

belief that surgery would treat her work-related injury, even 

though surgery was unnecessary treatment for that injury. 

Neither LIRC nor the 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). 

¶97 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 

good faith, its importance to the plain meaning of Wis. Stat. 

§ 102.42(1m) and avoids addressing good faith in the context in 
No. 2015AP1989.pdr

20

which it arises, I respectfully dissent from the majority 

opinion.
No. 2015AP1989.awb 

1

¶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. It is dated February 23, 2015, and it 

is the decision we 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 
No. 2015AP1989.awb 

2

attend,1 appellate counsel for LIRC attempts to change horses in 

midstream. 

¶103 The Department of Justice, representing LIRC on 

appeal, now argues that although LIRC misstated the only 

conclusion of law it was supposed to be reviewing, 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." 
No. 2015AP1989.awb 

3

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 cannot be any factual finding based on Dr. 

Soriano's report because as stated above, the LIRC 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 
No. 2015AP1989.awb 

4

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: whether the event of February 14, 

2013, aggravated and accelerated beyond normal progression a 

progressively deteriorating condition. In doing so, 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 a new hearing so that it can weigh the competing 

medical opinions and then, based on those 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.
No. 2015AP1989.awb 

5

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 her primary care physician, who referred her to an 

occupational specialist, Dr. Andrew Floren.

¶114 After a two month period of treatment, Dr. Floren 

referred Ms. Flug for an evaluation by a neurosurgeon, Dr. 

Eduardo Perez. He found that she had a degenerative disc 

disease and that a discectomy and fusion was needed at two 

levels in the cervical spine. Dr. Perez recommended that she 

have surgery. He "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."

¶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. That's the 

good news for Ms. Flug. Now the bad news.

¶117 After Ms. Flug underwent surgery, the worker's 

compensation carrier hired Dr. Morris Soriano to do an 

independent medical exam. He never met with Ms. Flug, but upon
No. 2015AP1989.awb 

6

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. He 

stated that he "strongly disagree[d]" with Dr. Soriano's 

statement, observing that "[t]he patient's history, clinical 

examination, and radiologic studies all support her need of 

surgery; which decision was also shown appropriate by her 

response to that surgery."

¶119 Competing medical opinions in worker's compensation 

cases are standard fare. Ms. Flug does not contend that the 

event of February 14, 2013, caused her degenerative spinal 

condition. Of course it did not. 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). The 

aggravation and acceleration beyond normal progression 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.
No. 2015AP1989.awb 

7

¶121 The ALJ's decision set forth the information provided 

in the written reports of both Dr. Floren and Dr. Soriano, 

however, it relied on neither. 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.
No. 2015AP1989.awb 

8

 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 C7 radiculopathy associated 

with C6-7 disk osteophyte complex and degenerative 

disk disease at the C5-6 level." 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 "object of Ms. Flug's 

surgery was not her compensable injury." 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." 
No. 2015AP1989.awb 

9

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." She continued this argument in the court 

of appeals, which explained that "Flug argues the 

Commission acted in excess of its powers in three 

respects." 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? It is 

well-settled that "when a decision by LIRC 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 what the majority 

acknowledges is advanced here. The majority describes 

Ms. Flug's arguments as "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 
No. 2015AP1989.awb 

10

injury.' Ms. Flug maintained this position even 

through oral argument here." The basis of Ms. Flug's 

argument is that LIRC's decision was not supported by 

the relevant evidence of record: "She says the 

relevant medical testimony establishes that 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." Majority op., ¶19.

¶129 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 
No. 2015AP1989.awb 

11

remain silent, refraining from addressing Ms. Flug's essential 

argument.

¶130 Although the majority acknowledges that Ms. Flug's 

true argument is that her surgery was necessitated 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. The majority 

contends that it is precluded from addressing Ms. Flug's 

argument regarding the nature of her injury because of 

nonexistent findings of fact. 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."). It declares 

that "Ms. Flug's argument [is] beyond our reach." 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 doing 'excellent' and feeling 'almost 100 

[percent]'". Majority op., ¶4. The picture that the majority 

paints makes the reader wonder whether Ms. Flug has any 

disability whatsoever. 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 
No. 2015AP1989.awb 

12

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 any 

potential for reliance on Dr. Soriano's report. 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).
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