By Phil Yacuboski
Chippewa Falls, WI (WorkersCompensation.com) - A Wisconsin woman won’t get workers’ compensation benefits after the Supreme Court in the Badger State ruled it was because she had two medical conditions. Tracie Flug, a store supervisor at the Chippewa Falls Walmart, underwent a surgical procedure not related to her Walmart employment that she claims left her permanently disabled. The case brought to the forefront preexisting conditions and how they are treated under a statute in Wisconsin workers’ comp law.
“The Supreme Court decision from a practitioner’s standpoint does not really change much of our interpretation and application of the law,” said Charlie Domer, an attorney with Domer Law, a workers’ compensation firm in Milwaukee. “In the Flug case, a workers’ compensation carrier is not responsible for invasive treatment or surgery that does not have a causal connection to the work injury itself.”
The 4-3 decision ruled against Flug because the surgery performed was something not related to a work injury, according to the judges who ruled against Flug. According to the court documents, Flug was scanning inventory on a shelf above her head when she felt a subsequent pain in her arm and neck. A doctor later said she had “mild degenerative changes” after a cervical spine X-ray was taken. She then went to a neurosurgeon who recommended surgery to ease pressure on her spinal cord. She was back to work at Walmart one month after the surgery, however, an occupational specialist later determined that she had a permanent disability due to the neck surgery. While Walmart’s workers’ compensation insurance carrier paid the medical bills from the shoulder and neck strain, they did not pay for expenses from the surgery.
The case then went to court.
An Administrative Law Judge, the Labor and Industry Review Commission and the Chippewa County Circuit all agreed that beyond the work-related injury, the claim should not have been paid. A court of appeals reversed that decision, because Flug thought the surgery would help the work-related injury. The State Supreme Court then disagreed with the lower court.
“Ultimately if the facts are found in a litigated matter that the surgery was due to a preexisting condition, the workers’ comp insurance company is not responsible,” Domer said. “If a decision maker in workers’ comp says that a surgery does not have a causal connection to the work injury, then the comp carrier is not rightfully responsible.”
He said that’s the way that they’ve been practicing for a number of years.
“The Flug case solidified that view,” he said, adding that he was not surprised by the decision.
Other workers’ compensation experts seem to agree.
“I am not surprised by the decision,” said Steve Bennett, Associate General Counsel and Director, Workers’ Compensation Programs for the American Insurance Association, “because the workers’ comp act requires compensation for work-related injuries. This was a non-work injury.”
Bennett said this issue could affect many employers in several states because it’s a complicated fact pattern.
“There are certainly a lot of disputes regarding preexisting injuries and whether they have been exacerbated by work-related injuries,” Bennett said. “I think there will always be disputes and questions. There will continue to be what is and what is not covered.”
