Flug v. Labor & Indus. Review Comm'n, 2015AP1989

CourtUnited States State Supreme Court of Wisconsin
Citation898 N.W.2d 91,2017 WI 72,376 Wis.2d 571
Docket NumberNo. 2015AP1989,2015AP1989
Parties 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.
Decision Date30 June 2017

376 Wis.2d 571
898 N.W.2d 91
2017 WI 72

Tracie L. FLUG, Plaintiff-Appellant,
LABOR AND INDUSTRY REVIEW COMMISSION, Wal-Mart Associates, Inc. and New Hampshire Insurance Company c/o Claims Management, Inc., Defendants-Respondents-Petitioners.

No. 2015AP1989

Supreme Court of Wisconsin.

Oral Argument: March 15, 2017
Opinion Filed: June 30, 2017

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.

For the plaintiff-appellant, there was a brief and oral argument by Jeffrey J. Klemp and Law Offices of Jeffrey Klemp, Eau Claire.


376 Wis.2d 573

¶1 Tracie L. Flug suffered from two medical conditions—a soft-tissue strain, and a degenerative disc disease. The first was work-related (and has since resolved), the second is not. She underwent surgery in the belief it was necessary to treat her work-related soft-tissue strain. In actuality, it was treating the unrelated degenerative disc disease. The procedure left her with a permanent partial disability. Ms. Flug tells us Wal-Mart (her employer) must compensate her for this permanent partial disability because she believed, in good-faith, that the disability-causing surgery was necessary to treat her work-related condition. We review the decision of the Labor and Industry Review Commission (the "Commission") denying Ms. Flug's claim for permanent partial disability benefits.


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

376 Wis.2d 574

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

898 N.W.2d 93

the visit, Ms. Flug stated that her symptoms were "slowly resolving," but that she had an "aching burning pain in her upper back" that "radiat[ed] into the posterior right shoulder and down the arm just a bit." Dr. Floren also noted that a cervical spine x-ray showed "mild degenerative changes," but he drew no connection between that condition and her work injury. He concluded that Ms. Flug had right upper back and shoulder pain with no sign of cervical involvement.

¶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.

376 Wis.2d 575

B. Ms. Flug's Application for Benefits

¶5 Wal-Mart agreed that Ms. Flug had suffered a work-related injury, and its worker's compensation insurance carrier paid medical expenses up to May 9, 2013, and disability benefits up to June 22, 2013. But because the insurance carrier did not agree the degenerative disc disease was attributable to Ms. Flug's work injury, it refused further compensation for medical expenses or disability 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 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

376 Wis.2d 576

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 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.

898 N.W.2d 94

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

376 Wis.2d 577

aggravated or exacerbated by her work activity on the date of injury. While Dr. Soriano said that Ms. Flug's medical treatment prior to June 4, 2013 was reasonable and necessary to treat her soft-tissue strain, the surgery performed was "unrelated to the work incident or work exposure." Dr. Soriano also said "[i]t is not physically possible that scanning a product on a shelf could have aggravated or worsened two levels of a previously arthritic condition at C5-C6 and C6-C7 to the point where it became symptomatic," and that the surgery "clearly ha[d] no relationship to any documentable, repetitive, objective neurological 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


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