                                                               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                                          (2016 – Unpublished)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.
    For the plaintiff-appellant, there was a brief and oral
argument by Jeffrey J. Klemp and Law Offices of Jeffrey Klemp,
Eau Claire.




                              2
                                                                              2017 WI 72
                                                                      NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.    2015AP1989
(L.C. No.   2015CV98)

STATE OF WISCONSIN                                  :            IN SUPREME COURT

Tracie L. Flug,

             Plaintiff-Appellant,

       v.                                                                   FILED
Labor and Industry Review Commission, Wal-Mart                        JUN 30, 2017
Associates, Inc. and New Hampshire Insurance
Company c/o Claims Management, Inc.,                                     Diane M. Fremgen
                                                                      Clerk of Supreme Court
             Defendants-Respondents-Petitioners.




       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



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.

                                      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
                                             2
                                                                     No.       2015AP1989



right upper back and shoulder pain with no sign of cervical

involvement.

    ¶4        Ms. Flug's condition improved in some ways over the

next few months, but not in others, so Dr. Floren referred her

to Dr. Eduardo Perez, a neurosurgeon.                Dr. Perez recommended an

anterior cervical discectomy with fusion/fixation at the C5-C6

and C6-C7 levels.         Ms. Flug had the surgery on June 4, 2013.                    A

month later, she met with Dr. Perez and reported that she was

"doing excellent" and was feeling "almost 100 [percent]."                            Dr.

Floren released Ms. Flug back to work on July 17, 2013, with a

lifting restriction that was eventually eliminated.                      Dr. Floren

declared that Ms. Flug reached a healing plateau by November of

2013,   and     assessed   her   (at    that    time)      as   having     a    limited

permanent partial disability.

                 B.   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


                                         3
                                                                             No.    2015AP1989



through August 8, 2013, as well as benefits for a 20 percent

permanent partial disability consequent to her back surgery.

    ¶7      Wal-Mart      asked      Dr.    Morris        Soriano       to     perform      an

Independent Medical Examination (IME) of Ms. Flug's injury.                                In

a report submitted in February of 2014, Dr. Soriano said that

Ms. Flug's records contained evidence of two unrelated medical

issues.     He diagnosed Ms. Flug's condition as a "post cervical

strain"     (the    work-related           injury),       and     "preexisting            mild

degenerative disc disease C6-7 and C5-6."

    ¶8      Dr.    Soriano     opined       that    the    only     injury          Ms.   Flug

suffered from the February 14, 2013, work-related incident was a

"soft   tissue     cervical    and     shoulder          strain."        He        said   this

condition "reached an end of healing within a four to six-week

period,"    long    before     Ms.    Flug      underwent       her      back       surgery.

Because that was a reasonable amount of time within which to

recover from such a strain, Dr. Soriano said it would be proper

to conclude that Ms. Flug suffered temporary disability during

that period.
    ¶9      The    disc      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
                                            4
                                                                                          No.   2015AP1989



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
                                                    5
                                                                                No.     2015AP1989



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.


                                                  6
                                                                                 No.   2015AP1989



concluded the Commission/ALJ had a sufficient factual basis to

deny       the   claim     for      benefits,         and    so    affirmed.           Ms.    Flug

appealed.

       ¶14       In   an   unpublished          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.


                                                  7
                                                                        No.   2015AP1989



                              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.


                                            8
                                                                           No.   2015AP1989



                                     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

                                            9
                                                                      No.    2015AP1989



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.


                                           10
                                                                              No.    2015AP1989



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).


                                                 11
                                                                                No.   2015AP1989



employer was liable because Mr. Spencer "now has a stiff knee

resulting from the original injury."                      Id. at 532.9          Ms. Flug says

§ 102.42(1m) maintains this understanding, and that "[e]mployers

remain liable for the good faith treatment an injured employee

receives for a compensable injury."

       ¶22        The     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.


                                                 12
                                                                            No.    2015AP1989



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.


                                             13
                                                                 No.   2015AP1989



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.




                                       14
                                                                          No.    2015AP1989



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 pre-

existing      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 pre-
existing condition beyond its normal progression, and that the
surgery was necessary to treat that exacerbated condition.
Maybe Ms. Flug's counsel should have adopted Justice Bradley's
litigation strategy. But he didn't——perhaps because the ALJ and
                                                     (continued)
                                             15
                                                                          No.    2015AP1989



                        B. What it Means to be "Unnecessary"

      ¶25    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.


                                             16
                                                                                No.     2015AP1989



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 statutorily-

defined 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
                                               17
                                                                                No.      2015AP1989



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:


                                                 18
                                                                        No.   2015AP1989


      (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   outcome-

determinative.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.


                                             19
                                                                      No.    2015AP1989



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




                                           20
                                                                  No.    2015AP1989



application of remedies to a patient or for a disease or an

injury; medicinal or surgical management; therapy."16                   Regardless

of whether the word takes its nominal or verbal form, it must

still be understood as operating on something.

     ¶32    With that understanding of this central term, we can

now let the rules of grammar direct our understanding of Wis.

Stat. § 102.42(1m).       Our first goal is discovering the objective

of the "treatment."        We begin with the part of the statute that

says "[i]f an employee who has sustained a compensable injury

undertakes . . . invasive            treatment . . . ."                   Without

considering more of the statute, "treatment" could operate on

one of two possible objects——the employee, or the compensable

injury.     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 non-
compensable degenerative disc disease.


                                         21
                                                                                      No.   2015AP1989



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
                                                22
                                                                    No.   2015AP1989



found (and we must accept) that the object of Ms. Flug's surgery

was not her compensable injury.18

     ¶35        The only way to reach the court of appeals' conclusion

would be to allow the object of the treatment to flicker between

the employee and the compensable injury, depending on whether we

are considering (a) what the treatment was treating, or (b) the

treatment's necessity.            The court of appeals' formulation would

make Ms. Flug the object of "treatment" when considering what

the surgery was treating, but flit to the compensable injury in

assessing its necessity.            Only if such grammatical instability

is possible may one conclude that the treatment was treating Ms.

Flug,     but    was   unnecessary    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.


                                        23
                                                                       No.   2015AP1989



compensable injury, we must also conclude that the treatments

contemplated      by   the    statute     are    those    that     are       generally

medically acceptable as a treatment of the compensable injury.

       ¶37    The statute has one further requirement, which we have

not yet addressed——"good faith."              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.


                                        24
                                                                    No.    2015AP1989



Without this, there would be no statutory liability for such an

event.      So   § 102.42(1m)       extended        the   employer's      statutory

liability, and the "good faith" requirement acts as a limit on

that extension.     If the disability-creating treatment turns out

not to have been necessary to treat her compensable injury, she

still receives disability benefits so long as she undertook the

treatment   in   good    faith.     We     need     not   explore   this    concept

further because we have already concluded Ms. Flug's treatment

does not qualify under the statute's extension of liability.21

                                  C. Consistency

     ¶38    Ms. Flug says Wis. Stat. § 102.42(1m) codified Spencer

(but for one aspect not relevant here), and all parties urge us

to apply that statute consistently with cases decided before its

adoption.   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.


                                         25
                                                                             No.    2015AP1989



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).


                                                26
                                                                                   No.   2015AP1989



       ¶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
                                                 27
                                                                          No.    2015AP1989



Commission    found    that    she    had        been    "overdiagnosed         and    over-

treated," because she continued to receive treatments long after

her compensable injury had resolved.                      However, because she had

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

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

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

that as long as the claimant engaged in the unnecessary and

unreasonable       treatment     in     good            faith,    the     employer       is

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

and   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


                                            28
                                                                 No.   2015AP1989



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.


                                   29
                                                                   No.   2015AP1989



                              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.




                                      30
                                                                      No.    2015AP1989.pdr



    ¶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).


                                              1
                                                                   No.    2015AP1989.pdr



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

§ 102.42(1m) and avoids addressing good faith in the context in

which    it   arises,       I    respectfully      dissent    from       the   majority

opinion.

                                     I.   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 Wal-

Mart, Flug felt a sudden pain in her neck that radiated down her

right arm.         She had not experienced pain before this incident.

Because the pain continued, on February 20, 2013, she sought

medical treatment from Dr. Sabina Morissette.                        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


                                             2
                                                                         No.       2015AP1989.pdr



a severe sudden pain in her right upper back area.                                   This pain

went down the posterior shoulder and arm to the wrists."                                       On

March 22, 2013, Floren's notes indicate that Flug's neck and

back were slowly getting better, but the pain in her shoulder

was not improving.           In addition, she had begun to have numbness

in her right hand and fingers.

       ¶51     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,
                                              3
                                                                              No.    2015AP1989.pdr



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, Wal-

Mart    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.
                                               4
                                                            No.    2015AP1989.pdr



    ¶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).


                                      5
                                                                 No.   2015AP1989.pdr



64, ¶29, 335 Wis. 2d 599, 804 N.W.2d 658 (citing Cty. of Dane v.

LIRC, 2009 WI 9, ¶14, 315 Wis. 2d 293, 759 N.W.2d 571).

      ¶62   This appeal turns on the interpretation of Wis. Stat.

§ 102.42(1m).       The   interpretation       of    a    statute      presents    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).


                                    6
                                                                         No.       2015AP1989.pdr



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
                                              7
                                                               No.    2015AP1989.pdr



a whole; in relation to the language of surrounding or closely-

related     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 . . . .").


                                          8
                                                                        No.      2015AP1989.pdr



      ¶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.


                                             9
                                                                          No.   2015AP1989.pdr



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




                                               10
                                                                          No.    2015AP1989.pdr



with the good faith belief that it would treat her work-related

injury is a central focus of § 102.42(1m).

       ¶76    Good faith is a state-of-mind question; accordingly,

whether one has acted in good faith is a question of fact.

Schmitz      v.   Firstar       Bank    of    Milwaukee,         2003    WI     21,   ¶34,   260

Wis. 2d 24, 658 N.W.2d 442 ("the question of whether Firstar

acted in good faith or in accordance with reasonable commercial

standards under Wis. Stat. § 403.419(3)(1993-94) was a question

of    fact    that      would    need        to    be     tried");      Tang     v.     C.A.R.S.

Protection Plus, Inc., 2007 WI App 134, ¶41, 301 Wis. 2d 752,

734 N.W.2d 169 ("Whether a party to a contract has breached its

implied duty of good faith is a question of fact.").

       ¶77    Good      faith    is    not        defined   in    Wis.    Stat.       § 102.42.

Therefore, we apply its ordinary meaning such as may be found in

a dictionary.          Kalal, 271 Wis. 2d 633, ¶53.                   The current version

of Black's Law Dictionary defines good faith, in part, as "[a]

state of mind consisting in . . . honesty in belief or purpose."

Good    Faith,         Black's    Law        Dictionary         808     (10th     ed.    2014).
Accordingly, an employee must act with an honest "belief or

purpose" in order to act with good faith.

       ¶78    The      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.")


                                                  11
                                                                          No.      2015AP1989.pdr



       ¶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


                                               12
                                                                       No.   2015AP1989.pdr



construed as requiring the employee to know that medical advice

for invasive treatment should not be taken.

       ¶83     Nevertheless, LIRC and the majority opinion5 contend

that the work-related injury must be medically connected to the

employee's         invasive     treatment     that      resulted       in    disability.

According to the majority opinion and LIRC, without that direct

connection,          Wis.   Stat.    § 102.42(1m)       does    not     apply.       Their

narrow statutory interpretation gives the employee the burden to

know       whether    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 disability-

creating 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.


                                            13
                                                                No.    2015AP1989.pdr



so long as she undertook the treatment in good faith."7                            The

majority opinion then continues to avoid the central issue of

the employee's good faith by saying, "We need not explore this

concept further because we have already concluded Ms. Flug's

treatment      does   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.


                                         14
                                                                            No.    2015AP1989.pdr



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    work-

related      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
                                               15
                                                                          No.   2015AP1989.pdr



another person who then undergoes unnecessary medical treatment

of    those    injuries       despite       having    exercised      ordinary       care    in

selecting her doctor, the tortfeasor is responsible for all of

that person's damages arising from any mistaken or unnecessary

surgery").

       ¶88     Our decision in Spencer v. DILHR, 55 Wis. 2d 525, 200

N.W.2d 611 (1972), illustrates this principle.9                            In Spencer, we

held that an employee is not "to be faulted because he chose to

follow erroneous medical advice . . . as long as he did so in

good faith."          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.




                                              16
                                                                          No.     2015AP1989.pdr



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 work-

related      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
                                                17
                                                                              No.    2015AP1989.pdr



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       (work-

related) 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
                                                18
                                                                        No.    2015AP1989.pdr



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


                                                19
                                                       No.    2015AP1989.pdr



which   it   arises,   I   respectfully   dissent   from     the   majority

opinion.




                                   20
                                                                            No. 2015AP1989.awb


       ¶98     ANN   WALSH     BRADLEY,        J.     (dissenting).               There    is    a

reason that the court of appeals issued an unpublished decision

here.       And it likely is the messy record, which certainly does

not represent LIRC's finest hour.

       ¶99     There is one, and only one, LIRC decision that was

ever issued in this case.              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

                                               1
                                                                 No. 2015AP1989.awb


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."


                                           2
                                                                         No. 2015AP1989.awb


hoc rationalization for agency action.                    If an agency's order is

upheld, it must be on the same basis articulated in the order by

the agency itself."         Illinois v. United States, 666 F.2d 1066,

1077 (7th Cir. 1981) (citing Fed. Power Comm'n v. Texaco, Inc.,

417 U.S. 380, 397, 94 S. Ct. 2315 (1974); Burlington Truck Lines

v. United States, 371 U.S. 156, 168-69, 83 S. Ct. 239 (1962)).

See also Bagdonas v. Dep't of Treasury, 93 F.3d 422, 426 (7th

Cir. 1996) ("It is, of course, well settled that courts cannot

accept counsel's post hoc rationalization for agency action.").

       ¶106 Rather   than       acknowledge         and   address        the   procedural

morass into which this court has waded, the majority skirts the

issue, contending that it must accept LIRC's findings of facts:

"the   Commission    has    already       found         and   we   must     accept     [the

findings]." Majority op., ¶34.

       ¶107 What factual finding is there that the majority feels

so enslaved to uphold?

       ¶108 It   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



                                              3
                                                                        No. 2015AP1989.awb


that the "object of Ms. Flug's surgery was not her compensable

injury, but her pre-existing condition."                    Majority op., ¶34.

       ¶110 Attached to this writing are the findings of fact of

the ALJ as well as the February 23, 2015, decision of LIRC.                             As

the reader will be able to observe, neither the ALJ nor LIRC

made such findings.

       ¶111 The majority uses the clearly erroneous LIRC decision

and nonexistent findings of fact as a springboard to avoid the

real issue in this case:                   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.


                                             4
                                                                                 No. 2015AP1989.awb


                                                 I.

       ¶113 This case started out as a somewhat routine worker's

compensation        case.         Ms.    Flug    has       a    conceded         work    injury      of

February 14, 2013, which she sustained while repeatedly raising

her right arm to scan boxes at Walmart.                               She initially treated

with    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

                                                 5
                                                                      No. 2015AP1989.awb


a review of her records, filed a report one year after the

injury and 9 months after the surgery, opining that the February

14, 2013, event did not aggravate beyond normal progression her

pre-existing spinal condition.

         ¶118 On the other hand, Dr. Floren opined that it did.                            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.



                                             6
                                                                No. 2015AP1989.awb


      ¶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.




                                         7
                                                                  No. 2015AP1989.awb


            The majority is incorrect.              Ms. Flug did not undergo

             surgery because she believed it necessary to treat a

             strain. The record reflects that prior to recommending

             surgery, Ms. Flug's surgeon, Dr. Perez, diagnosed Ms.

             Flug    with   "right-sided        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."




                                          8
                                                                      No. 2015AP1989.awb


of fact are the result of fraud, or that the Commission acted

outside of its powers."         Majority op., ¶23.

          Ms. Flug has consistently argued that the Commission

           acted outside of its powers.                     In her appeal to the

           circuit court she argued that "LIRC acted without and

           in excess of its powers as described in Wis. Stat.

           § 102.23."         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

                                            9
                                                                    No. 2015AP1989.awb


           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

                                            10
                                                                        No. 2015AP1989.awb


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




                                             11
                                                                      No. 2015AP1989.awb


percent permanent partial disability.5                    Ms. Flug had procedures

at two levels of her cervical spine.

    ¶132 Finally, the majority says nothing about that part of

LIRC's       February     23,    2015,    decision       where   it       excluded    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 C-
6/C-7 level.     The Department of Workforce Development rule
governing a scheduled worker's compensation injury provides in
relevant part that "[t]he disabilities set forth in this section
are the minimums for the described conditions."     DWD 80.32(1)
(2015-16); see also Wis. Stat. § 102.52. The minimum permanent
partial disability rating for a discectomy and fusion is 10% per
level. DWD 80.32(11).




                                              12
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1
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2
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3
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4
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5
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6
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7
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8
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9
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1
