PUBLISHED
OPINION
COURT OF
APPEALS
DECISION
DATED AND FILED
November
28, 2000
Cornelia G. Clark
Clerk, Court of Appeals
of
Wisconsin
NOTICE
This opinion is subject to further editing. If published, the official version will
appear in the bound volume of the Official Reports.
A party may file with
the Supreme Court a petition to review an adverse decision by the Court of Appeals.
See
Wis. Stat. §808.10
and Rule 809.62.
No. 99-3002
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
I
Honthaners
Restaurants, Inc.
and North River
Insurance Co.,
Plaintiffs-Appellants,
v.
Labor and Industry
Review Commission
and Dawn Marie
Stanislowski,
Defendants-Respondents.
APPEAL from an order of the circuit court for Milwaukee County: VICTOR
MANIAN, Judge. Affirmed.
Before Fine, Schudson and Curley, JJ.
¶1. CURLEY, J.Honthaners Restaurants, Inc., and its worker's compensation
carrier, North River Insurance Company (collectively, "Honthaners") appeal the
Labor and Industry Review Commission's award to Dawn Marie Stanislowski of additional
temporary total disability payments and additional medical expenses. Honthaners argues that
the Commission exceeded its authority under Wis. Stat. §102.42(1) because the law
permits Stanislowski to be awarded benefits only if her medical treatment and expenses were
necessary and reasonable.1
Honthaners contends that the Commission's finding that Stanislowski had been medically
"overdiagnosed and over-treated" was tantamount to a finding that Stanislowski's
treatment and medical expenses were unreasonable and unnecessary. Honthaners also
submits that the Commission improperly interpreted the holding in Spencer v.
DILHR, 55 Wis.2d 525, 200 N.W.2d 611 (1972), as permitting the award of
benefits for Stanislowski's overdiagnosed and over-treated injury. Alternatively, Honthaners
argues that, even if Spencer is dispositive, it has been overturned by
legislative amendment. We affirm.
¶2. In reviewing the Commission's decision and giving it great weight
deference, we conclude that Spencer controls and
creates an exception to the Wis. Stat. §102.42(1) rule awarding benefits only for
reasonable and necessary medical treatment and expenses. Since Stanislowski, like the
claimant in Spencer, suffered an undisputed compensable injury which
generated a conflict between the medical experts as to the degree of her injury and its
duration, she is entitled to be compensated for her additional medical treatment and her
expenses because she accepted the additional treatment in good faith.
I.Background.
¶3. Stanislowski injured her right arm on July 9, 1994, while working at a
George Webb's Restaurant owned by Honthaners Restaurants, Inc. Stanislowski related that
when she flipped some eggs in a frying pan, she heard a "pop" in her right
elbow, lost strength in her arm and experienced pain. Honthaners did not object to her
initial application for worker's compensation. As a consequence, Stanislowski was awarded
temporary total disability from August 16, 1994, through February 4, 1995, in addition to
the payment of her accrued medical expenses for that time period.
¶4. Later, Stanislowski sought additional temporary total disability payments,
permanent partial disability benefits and payment for additional medical expenses.
Honthaners objected, and after a contested hearing, the administrative law judge (ALJ)
determined that Stanislowski had not met her burden of proof and that she was entitled to no
further compensation. The ALJ reached this decision after hearing Stanislowski's testimony,
reviewing the medical records, and watching a surveillance tape of Stanislowski performing a
number of tasks with her right arm.
¶5. Stanislowski appealed the ALJ's decision to the Labor and Industry Review
Commission. The Commission reversed the decision of the ALJ. In its decision, the
Commission related Stanislowski's medical history. It noted that Stanislowski was first
treated for her injury in August of 1994 by Dr.Bogunovic, who recommended that
Stanislowski not work. During the course of Stanislowski's treatment, Dr. Bogunovic also
referred Stanislowski to two other doctors who examined her and generally agreed with his
diagnosis. Although Dr. Bogunovic originally authorized Stanislowski to go back to work in
April of 1995, she did not return because she claimed she could not hold any substantial
weight in her right hand. Stanislowski continued her treatment with Dr. Bogunovic and, on
March 26, 1996, he "opined that she had reached a healing plateau." He also
evaluated her injury and "assessed 50 per cent permanent partial disability at the right
elbow."
¶6. The Commission also reviewed the medical reports and opinion of Dr.
McCabe, who saw Stanislowski at the request of the worker's compensation insurer. Dr.
McCabe examined Stanislowski on three occasions. At the first visit, in August 1994, Dr.
McCabe agreed that Stanislowski suffered an injury at work, but unlike Dr. Bogunovic, Dr.
McCabe recommended light duty work and physical therapy. Dr. McCabe next saw
Stanislowski on February 9, 1995. At that time, Dr. McCabe found Stanislowski's
complaints to be unsupported by any physical findings. In sharp contrast to Dr. Bogunovic's
medical opinion, Dr.McCabe wrote that Stanislowski's injury was temporary in nature, and
that it should have healed within one month of the injury. Dr.McCabe's report also stated,
"We would be concerned that the patient simply chooses not to work."
Dr.McCabe last examined Stanislowski on January 8, 1998. At that time, he reiterated that
Stanislowski reached a healing plateau far earlier than the time suggested by Dr.Bogunovic,
and that she suffered from no permanent disability. Another doctor, Dr.Dzwierzynski, also
hired by Honthaners, agreed with Dr. McCabe's assessment of Stanislowski and rejected the
diagnosis of Dr. Bogunovic.
¶7. Before reaching its decision, the Commission also conferred with the ALJ.
The ALJ advised the Commission that he had not found Stanislowski to be a credible
witness. Nevertheless, the Commission reversed the ALJ's decision and ordered Honthaners
to pay Stanislowski temporary total disability and certain medical expenses from February 4,
1995, through March 2, 1996.2 It
did, however, affirm the ALJ's finding of no permanent partial disability. In awarding
additional benefits, the Commission did not adopt Dr. Bogunovic's opinion that Stanislowski
suffered a permanent partial disability; instead, it adopted Dr.McCabe's opinion that
Stanislowski's injury had resolved without any permanency. But because the Commission
found that Stanislowski had been "overdiagnosed and over-treated," that she
believed herself to be permanently disabled, and that she engaged in her prolonged medical
treatment with Dr. Bogunovic in "good faith," the Commission reasoned that
Stanislowski was eligible for continued benefits. It explained: "In accordance with
Spencer the medical treatment she received and temporary disability she
incurred up to Dr. Bogunovic's assessment of a healing plateau on March 26, 1996, is
compensable regardless of its reasonableness or necessity." Honthaners then appealed
the Commission's decision to the circuit court. There, Honthaners argued that the
Commission misinterpreted Spencer's holding in awarding Stanislowski
benefits. The trial court affirmed, determining: "[T]he Commission[']s decision is
reasonable and concords with the purpose of the statute. The court also concludes that the
Commission's findings of fact and conclusions of law support the ... award."
II.Analysis.
¶8. We review the Commission's decision, not that of the circuit court.
See Stafford Trucking, Inc. v. DILHR, 102 Wis.2d 256, 260, 306
N.W.2d 79 (Ct. App. 1981).
¶9. Honthaners argues that the Commission's decision is in error because,
"in ignoring the express language found in [Wis. Stat. §] 102.42(1), [it]
interpreted Spencer as requiring it to award Stanislowski temporary total
disability and medical expenses from February 4, 1995, until March 26, 1996."
Further, Honthaners submits that the facts of this case more closely resemble those in
City of Wauwatosa v. LIRC, 110 Wis.2d 298, 328 N.W.2d 882 (Ct.
App. 1982), which, if followed, would require the Commission to reject Stanislowski's
request for additional benefits.
¶10. In this appeal, we are presented with questions of fact and law. When
presented with mixed questions of fact and law on administrative review, this court employs
the standard of review set forth in Michels Pipeline Construction, Inc. v.
LIRC, 197 Wis. 2d 927, 541 N.W.2d 241 (Ct. App. 1995):
"LIRC's findings of fact are conclusive on appeal so
long as they are supported by credible and substantial evidence. The drawing of one of
several reasonable inferences from undisputed facts also constitutes fact finding. Any legal
conclusion drawn by LIRC from its findings of fact, however, is a question of law subject to
independent judicial review.
When the question on appeal is whether a statutory concept embraces a particular
set of factual circumstances, the court is presented with mixed questions of fact and law.
The conduct of the parties presents a question of fact and the meaning of the statute a
question of law. The application of the statute to the facts is also a question of law.
However, the application of a statutory concept to a set of facts frequently also calls for a
value judgment; and when the administrative agency's expertise is significant to the value
judgment, the agency's decision is accorded some weight."
Id. at 931 (citation omitted).
¶11. In addition, here we accord the Commission's legal determinations great
weight deference.
When, and to what degree, deference should be paid to an
agency's decision in a given case has been the subject of much discussion in the supreme
court and this court over the years. This discussion has culminated in Harnischfeger
Corp. v. LIRC, 196 Wis. 2d 650, 661, 539 N.W.2d 98 (1995), where the supreme
court, summarizing several prior cases, outlined three possible levels of deference courts
should apply to an administrative agency's legal conclusions and statutory
interpretations.
According to Harnischfeger, courts should grant the highest level of
deference-"great [weight] deference"-to the agency where: (1) it is charged with
administration of the statute being interpreted; (2) its interpretation "is one of
long-standing"; (3) it employed "its expertise or specialized knowledge" in
arriving at its interpretation; and (4)its interpretation "will provide uniformity and
consistency in the application of the statute.
Barron Elec. Coop. v. PSC, 212
Wis.2d 752, 760-61, 569 N.W.2d 726 (Ct. App. 1997). Applying these criteria, we are
satisfied that the Commission's decision must be given great weight deference. The
Commission's interpretation of both Wis. Stat. §102.42(1) and
Spencer is of long standing. Further, in interpreting both the statute and
the case law, the Commission employed its expertise and specialized knowledge. Finally, its
interpretation provided uniformity and consistency in the application of the law.
¶12. Honthaners argues that great weight deference should not be given to the
Commission's decision because the Commission has never previously decided a case with
similar facts. We reject this argument because the Commission need not have decided a case
with identical or similar facts in order for its decision to be given great weight deference. In
Town of Russell Volunteer Fire Department v. LIRC, 223 Wis.2d 723,
589 N.W.2d 445 (Ct. App. 1998), review denied, 225 Wis.2d 490, 594 N.W.2d
384 (1999), we concluded that "[t]he correct test under Wisconsin law [in applying
deference to the Commission's decision] is whether [the Commission] has experience in
interpreting a particular statutory scheme, not whether it has ruled on precise, or even
substantially similar, facts before." Id. at 733. Thus, although the
facts here differ from those found in other cases dealing with the same issues, here we
accord the Commission great weight deference because it has frequently been called upon to
interpret the statutory scheme found in Wis. Stat. §102.42(1).
¶13. Having determined that the great weight standard applies here, the
"agency's interpretation must then merely be reasonable for it to be sustained."
Harnischfeger Corp. v. LIRC, 196 Wis.2d 650, 661, 539 N.W.2d 98
(1995).
¶14. Honthaners first argues that the Commission erred in its decision because
Wis. Stat. §102.42(1) directs that a claimant is allowed compensation only for medical
treatment that is reasonably required and necessary. It asserts that a finding that Stanislowski
was "overdiagnosed and over-treated" is tantamount to a finding that
Stanislowski's medical treatment was unreasonable and unnecessary and, therefore, an award
of benefits runs contrary to the statute's mandate prohibiting recovery for unreasonable and
unnecessary medical treatment. Section 102.42(1), in relevant part, provides:
(1) Treatment of Employe. The employer shall supply
such medical ... treatment ... as may be reasonably required to cure and relieve
from the effects of the injury ... and in case of the employer's neglect or refusal seasonably
to do so, or in emergency until it is practicable for the employe to give notice of injury, the
employer shall be liable for the reasonable expense incurred by or on behalf of
the employe in providing such treatment.... Where the employer has knowledge of the
injury and the necessity for treatment, the employer's failure to tender the necessary
treatment ... constitutes such neglect or refusal.... The obligation to furnish such treatment
... shall continue as required to prevent further deterioration in the condition of the employe
or to maintain the existing status of such condition whether or not healing is
completed.
(Emphases added.)
¶15. We agree that the statute ordinarily permits compensation only when
medical treatment and expenses are reasonably required and necessary. However,
Spencer creates an exception to the general rule. In
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. See Spencer, 55 Wis.2d at
530-32. Spencer teaches that as long as the claimant engaged in the
unnecessary and unreasonable treatment in good faith, the employer is responsible for
payment. See id. at 532. Thus, we must look at the facts to see if
Spencer applies.
¶16. The pertinent portion of the Commission's decision reads:
Given the entire record, the commission finds it credible that
the applicant continued to receive medical treatment from her physicians in good faith. The
commission further finds that the applicant believes herself to be permanently disabled, when
in fact Dr. McCabe credibly opined that her epicondylitis and reflex sympathetic dystrophy
have resolved without any permanency. In accordance with Spencer the
medical treatment she received and temporary disability she incurred up to Dr. Bogunovic's
assessment of a healing plateau on March 26, 1996, is compensable regardless of its
reasonableness or necessity. Therefore, the applicant is entitled to additional temporary total
disability from February 4, 1995 through March 26, 1996, a period of exactly 64 weeks at
the applicable rate of $288 per week, for a total of $18,432.
The Commission was presented with conflicting
evidence. Although the ALJ determined that Stanislowski was not credible, the Commission
came to the opposite conclusion. The Commission also discounted the impact of the
surveillance videotape. The Commission noted that Dr. Bogunovic refused to change his
medical opinion concerning Stanislowski's injury after viewing the videotape, suggesting that
Dr. Bogunovic believed the tape validated, in some measure, Stanislowski's medical
complaints. This conclusion is further supported by the Commission's finding that "the
videotape evidence showed the applicant did favor her right arm, albeit moderately."
While evidence exists that Stanislowski might have been a malingerer, as suggested by Dr.
McCabe, and an argument can be made that Stanislowski's complaints of limited range of
motion in her arm were blunted by the videotape, these were not the Commission's findings.
¶17. Further, the Commission found that Stanislowski "had been
overdiagnosed and over-treated for her right elbow problem" and that Stanislowski's
recovery was delayed because "the applicant believe[d] herself to be permanently
disabled." Stanislowski was treated for over two years, yet the Commission found that
she had no permanent disability. Instead, the Commission found that her lengthy treatment
was because she believed herself to be permanently disabled and, as a result, that she
continued her treatment in good faith. While the inferences from these findings suggest that
some of Stanislowski's treatment and expenses were unnecessary and possibly unreasonable,
we must accept the Commission's findings; it is not our role to weigh the evidence or pass
upon the credibility of witnesses. See Langhus v. LIRC, 206 Wis.2d
494, 501, 557 N.W.2d 450 (Ct. App. 1996); Wis. Stat. §102.23(6).
¶18. Having ascertained what the Commission found, we next address whether
these facts fall within the ambit of Spencer. We are satisfied that the
Commission properly concluded that Spencer was controlling.
¶19. In Spencer, Henry Spencer, the claimant, suffered a
knee injury while working. See Spencer, 55 Wis.2d at 526-27. No
dispute arose over whether Spencer's injury was compensable under the Worker's
Compensation Act. Rather, the dispute arose over the conflicting medical opinions given to
Spencer as to the best course of treatment. Dr. Braun, the first orthopedic surgeon to see
Spencer, advised him that his injury required his knee cap to be removed. See
id. at 527. Spencer agreed and Dr.Braun performed this operation. Following
surgery, the doctor evaluated Spencer as suffering from "permanent disability
equivalent to 15 percent at the knee." Id. Dr. Braun advised
Spencer that he was free to go back to work and needed no further treatment. Spencer,
however, continued to have pain, and he consulted with Dr. Miller, another orthopedic
surgeon, who recommended a procedure called an "arthrodesis." See
id. Again, Spencer agreed to the surgery and, after the arthrodesis was
performed, Dr. Miller concluded that Spencer now suffered from a 40 per cent permanent
partial disability. See id. When Spencer's employer objected to
Dr.Miller's findings, a hearing was held in which the Department of Industry, Labor and
Human Relations found that Spencer suffered from only a fifteen percent permanent partial
disability and that Spencer was not entitled to any medical expenses associated with the
arthrodesis because it was neither reasonable nor necessary.3 See id. Spencer appealed
to the circuit court. The circuit court set aside the Department's findings and remanded the
matter for implementation of its determinations. See id. at 527-28. The
Department, the employer and its insurer then appealed. In affirming the circuit court's
remand, the supreme court explained:
As we see it, the conflict here is not with the amount of
disability ultimately resulting, but whether the judgment of one or the other doctor was
correct or incorrect with respect to the necessity of the arthrodesis. Assuming Dr. Braun
was correct, is Spencer to be faulted because he chose to follow erroneous medical advice?
We do not think so, as long as he did so in good faith. 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. Respondent now has a stiff
knee resulting from the original injury.
Id. at 532 (footnote omitted).
¶20. Honthaners disputes the application of Spencer and
contends that the City of Wauwatosa case controls this case. The
claimant in City of Wauwatosa was a police officer who slipped off a
curb, fell, and injured his left hip. See City of Wauwatosa, 110 Wis.2d
at 299. He received medical treatment and returned to work. Several weeks later, he
stopped working because of the pain and was referred to Dr. Hickey. Dr. Hickey claimed
that the officer's injury was the result of a congenital condition which had been asymptomatic
until the fall. See id. Dr.Hickey then performed surgery on the officer.
Later, Dr.Collopy examined the officer at the request of the city and its insurer. He found
that the accident did not aggravate the existing congenital condition; instead, it merely
"brought the condition to the attention of the surgeon." Id.
After considering the conflict between the medical experts as to the cause of the claimant's
injury, the hearing examiner determined that the officer's work-related injury did not require
surgery and denied him benefits related to the surgery. See id. at
299-300. The Commission disagreed, finding that the officer's fall aggravated the
preexisting congenital condition, entitling the officer to additional benefits. See
id. at 300. The circuit court upheld the Commission, principally relying on
Spencer in reaching its decision. See id. The court of
appeals reversed, opining:
In Spencer, the Wisconsin Supreme Court held
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 the treatment because it finds the treatment either unnecessary or
unreasonable. In Spencer, it was undisputed that the injury was a compensable
industrial injury. Here, however, there was a dispute in the medical testimony whether [the
officer's] condition for which surgery was performed was even related to the compensable
industrial injury. The hearing examiner found that the compensable industrial injury did not
necessitate surgery. We conclude that the Spencer rationale applies only to cases
involving treatment for an undisputed compensable industrial injury. It thus does not apply
to the facts of this case.
Id. at 300-01 (citations
omitted).
¶21. The cases reveal one important factual difference. In City of
Wauwatosa, the parties disputed the actual cause of the injury, with the court of
appeals adopting the hearing examiner's finding that the surgery was not the result of the
work-related injury-it was required by the preexisting congenital condition. In
Spencer, the parties disputed medical treatment, not cause. Here, the
Commission found that Stanislowski suffered an undisputed compensable injury; as in
Spencer, there is no dispute that she had a work-related injury. In
Spencer, the court permitted compensation, even though the treatment was
unnecessary and unreasonable, because the claimant obtained treatment in good faith. In the
present case, the Commission found that Stanislowski, acting in good faith, obtained
treatment after having been "overdiagnosed and over-treated." Thus, the
Commission correctly observed that the facts of this case fall squarely within the
Spencer holding.
¶22. As in Spencer, here we have two conflicting medical
opinions concerning a claimant's injury. Dr. Bogunovic believed Stanislowski suffered a
permanent injury and needed prolonged treatment. On the other hand, Dr. McCabe felt the
injury had healed and that Stanislowski was exaggerating her medical condition. Although,
admittedly, Stanislowski's credibility played a large part in Dr. McCabe's diagnosis and
treatment, the pertinent issues here and in Spencer are identical. 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 Stanislowski is entitled to additional
benefits.
¶23. As noted, Honthaners alternatively argues that if
Spencer applies, it is no longer good law because amendments to the law
have overruled Spencer. At the time of the Spencer
decision, the claimant was required to pick a doctor from an
employer-approved panel of doctors. See Wis. Stat. §102.42(2) (1965).
Honthaners argues that an amendment abolishing the use of a panel of employer-named
physicians overruled Spencer. See Laws of 1977, ch.195,
§§24-28, 45. We disagree.
¶24. Our review of the legislative history reveals nothing that would support
Honthaners' contention that the legislature overruled Spencer by passing
the amendment. It is a well-settled principle of statutory construction that the courts will not
interpret a statute in a manner that will abrogate the prevailing case law unless such intent is
clear from the language of the statute. See State v. Gomaz, 141 Wis. 2d
302, 320 n.11, 414 N.W.2d 626 (1987). No intent to abrogate Spencer is
apparent from the statutory language. Moreover, the Department itself interpreted this
amendment as only changing the requirement that a claimant choose from a panel of
employer-approved doctors. See Biennial Worker's Compensation Act pamphlet
N47 (1978). Such an annotation is entitled to consideration in ascertaining legislative intent.
See Lisney v. LIRC, 171 Wis. 2d 499, 513, 493 N.W.2d 14 (1992).
¶25. Further, we note that in Holdman v. Smith Laboratories,
Inc., 151 Wis. 2d 813, 447 N.W.2d 69 (Ct. App. 1989), we cited
Spencer for the rule that "treatment must be undertaken in good
faith." Holdman, 151 Wis.2d at 817. In citing
Spencer, we implicitly acknowledged that it remained good law. Thus,
Spencer has not been overturned.
¶26. In sum, we have accepted the Commission's findings and, after applying
them, we are satisfied that Spencer controls the outcome of this case. In
affirming the Commission's decision, we are mindful that for over sixty years, appellate
decisions have determined that the Worker's Compensation Act is to be liberally construed to
support compensation. See Sentinel News Co. v. Industrial
Comm'n, 224 Wis. 355, 360, 271 N.W.2d 413 (1937). The Commission's
decision here is in keeping with this policy determination. The Commission's decision is
affirmed.
By the Court.-Order affirmed.
Recommended for publication in the official reports.
¶27. FINE, J. (dissenting). Spencer v. DILHR, 55 Wis. 2d
525, 531-532, 200 N.W.2d 611, 614-615 (1972), held that when a worker with a
work-related injury accepts treatment for that injury in good faith, the employer is
responsible for the costs of the treatment as well as any aggravation to the injury that results
in either a higher level or longer period of disability even though in retrospect that treatment
was neither reasonable nor necessary. Spencer applies, however,
only where the treatment was "for an undisputed compensable"
work-related injury. City of Wauwatosa v. LIRC, 110 Wis. 2d 298, 301,
328 N.W.2d 882, 884 (Ct. App. 1982). Here, Hothnaners Restaurants, Inc., conceded only
part of Dawn Marie Stanislowski's claim that she suffered a work-related
injury-that is, her injuries that antedated February 4, 1995. Contrary to what the majority
says, Hothnaners Restaurants did and does dispute that Stanislowski had
any work-related injury after that date. Thus, although
Spencer would apply to make Hothnaners Restaurants liable for the
expense and consequences of treatment undertaken in good faith for the pre-February injury
even though the treatment might have been neither reasonable nor necessary, that is not the
issue here because Hothnaners Restaurants does not assert that Stanislowski's pre-February 4,
1995, treatment was either unreasonable or unnecessary. It does argue,
however, that it is not responsible for the expense or consequences of unnecessary and
unreasonable treatment dated to any post-February 4 work-related injury because Hothnaners
disputes that Stanislowski has any post-February 4 work-related injury. I agree,
and, accordingly, respectfully dissent.
¶28. The administrative law judge in this case found that Stanislowski did not
have any work-related injury after February 4, 1995. ("I find [Stanislowski] reached a
healing plateau as of February 4, 1995 (exclusive) and is not entitled to further compensation
or medical treatment thereafter." Crediting medical opinions of Dr. Robert McCabe
and Dr. William Dzwierzynski.). [aa 118] The Labor and Industry Review Commission
reversed. In the crux of its decision, the Commission wrote:
In consultation with the commission, the administrative law
judge indicated that he did not find the applicant to have been a credible witness. He
reiterated his findings that the videotape evidence, as well as the lack of objective findings in
the x-ray, CT scan, and EMG results, led him to accept the medical opinions of Mr.
McCabe and Dr. Dzwierzynski. The commission was also persuaded that the
applicant has been over-diagnosed and over-treated for her right elbow problem; however,
even Dr. McCabe acknowledged that [Stanislowski] originally sustained a right epicondylitis,
and that she may have had a Stage I reflex sympathetic dystrophy.
(Emphasis added.) The Commission further found that
Stanislowski received her treatment in good faith and that:
[Stanislowski] believes herself to be permanently disabled,
when in fact Dr. McCabe credibly opined that her epicondylitis and reflex sympathetic
dystrophy have resolved without any permanency. In accordance with Spencer v. ILHR
Department, 55 Wis. 2d 525, 532, 200 N.W.2d 611 (1972), the medical
treatment she received and temporary disability she incurred up to Dr. Bogunovic's
assessment of a healing plateau on March 26, 1996, is compensable regardless of its
reasonableness or necessity. [aa 114]
¶29. In my view, what the commission has
done, and what the majority has sanctioned, is to apply Spencer not to
situations to which City of Wauwatosa recognized
Spencer was limited-namely, to cases involving treatment for "an
undisputed compensable" work-related injury-but, rather, to resolve a
dispute as to whether there was, in fact, a work-related injury. I would reverse.
1 All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise
noted.
2 One commissioner dissented from the decision.
3 At the time of Spencer's hearing, the Department of Industry, Labor, and Human Relations
oversaw the award of worker's compensation benefits.
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