First Quarter 2018


By: Sam Casson

Question:  In an otherwise compensable claim, when does an employer have to pay for pre-surgical testing/treatment and pay TTD benefits while such testing/treatment occurs?


Short Answer: Almost always, with some exceptions. Insurers/self-insured employers take employees “as-is,” and are required to pay for all reasonable and necessary medical benefits required to cure or relieve the effects of the injury, including otherwise personal treatment necessary for the claimant to undergo compensable work-related treatment. Lost time liability generally continues during such a treatment course.


Discussion: In most situations, the insurer/self-insured employer would not have a defense to liability for temporary total/partial disability while the employee is required to treat for unrelated conditions (i.e., weight loss, diabetes, heart disease, hypertension) that must stabilize before the employee can undergo work-related treatment. A physician will need to opine that stabilizing a claimant’s unrelated condition prior to surgery is necessary prior to him or her undergoing surgery for the condition at issue. The main rationale is Wisconsin law mandates that employers take employees “as-is,” including with any preexisting condition that renders employees susceptible to disability of a greater dimension than would occur for other employees without such conditions. See, Semons Department Store v. DILHR, 50 Wis. 2d 518, 528 (1971). The Commission has explained, “Where a worker has a pre-existing condition, such as hypertension or heart disease, which prevents immediate surgery for a work injury. . . treatment of the underlying condition to permit surgery for the work injury cannot be reasonably considered as something separate from treatment of the work injury itself.” Mitchell v. ITW Deltar Chippewa, WC Claim No. 96001304 (LIRC Oct. 30, 1997), aff’d, 226 Wis. 2d 11 (Ct. App. 1999). The as-is rule is typically cited in the causation/compensability context, where a work injury renders a pre-existing condition permanently disabling—but the rule also extends to  situations regarding the determination of a healing period, and TTD or medical liability. See, ITW Deltar v. LIRC, 226 Wis. 2d 11, 593 N.W.2d 908 (Ct. App. 1999). Pre-surgical treatment that is deemed reasonable and necessary for the claimant to undergo surgery is compensable (e.g., weight loss treatment prior to a knee surgery). Any treatment aimed at curing a non-work related, purely personal ailment (e.g., a hernia in the case of a broken foot), would not be compensable.  Lost time benefits may still be owed during that time even if medical treatment expenses can be denied.

The doctrine is not without limits. Compensation may be denied under Wis. Stat. § 102.42(6) if the claimant’s disability is aggravated, caused, or continued by an unreasonable refusal to submit to treatment or follow competent medical advice. See, Anderson v. Servicemaster Professional, WC Case No. 2002-025737 (LIRC, April 4, 2005). If the claimant refuses to undertake compensable care of any kind—whether work-related treatment or personal care that must occur in advance of work-related treatment—and the purpose of that refusal appears only to be to unreasonably extend the period of temporary incapacity, we recommend exploring a defense, with a medical expert, that the claimant is at end of healing.

The Department does not have the authority to order an employer to pay an injured employee TTD benefits for the period after the employee’s medical condition has stabilized and before the employee undergoes surgery.  See, Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392 (1960); GTC Auto Parts v. LIRC, 184 Wis. 2d 450, 461, 516 N.W.2d 393, 398 (1994). Once the claimant reaches a healing plateau, he or she is no longer in the healing period, and no lost time benefits are due.

The line may be drawn where the claimant is treating for a “personal ailment” that is disabling and delaying treatment for the work related condition for which surgery is recommended, provided the claimant is shown to be “independently disabled.”  The Commission has found “[t]he non-work related condition must be both independently disabling and delay treatment” for the work-related injury to support a denial or suspension of TTD benefits. Parris v. Walker Stainless Equipment, WC Claim No. 2000-03949 (LIRC Nov. 6, 2007); Anderson, WC Case No. 2002-025737 (LIRC, April 4, 2005). In other words, a period of disability from an independently disabling ailment will not support denial of compensation for a concurrent period of disability for a work injury unless the personal ailment affects the healing period for the work injury. Morris v. Family Dollar Stores of Wisconsin, WC Claim Nos. 2011-014885 & 2011-024857 (LIRC Sept. 23, 2015).  For example, when the claimant in ITW Deltar was pregnant, and would not have otherwise been losing time from work during the pre-surgical period during which she was deemed “disabled” for the work related condition, TTD was still owed. ITW Deltar, 226 Wis. 2d 11 (Ct. App. 1999).  Conversely, TTD benefits were not owed when the claimant was “independently disabled” during the post-natal period of the pregnancy and the pregnancy delayed surgery necessary to cure the work related injury. Id.

The “personal ailment” defense was further clarified in Morris with regard to the delay in treatment issue. The Commission ordered the insurer to pay TTD while the claimant was treating for his independently disabling cardiomyopathy condition when that treatment itself was not the cause of the delay for work related PTSD treatment.  Morris, WC Claim Nos. 2011-014885 & 2011-024857 (LIRC Sept. 23, 2015).  The claimant actually delayed PTSD treatment in that case, but the delay was due to the claimant’s lack of money rather than the independently disabling cardiomyopathy. Thus, the delay in treatment needs to be specifically due to the treatment for the independently disabling condition itself, or based on an unreasonable refusal to submit to treatment or follow competent medical advice, though the latter issue was not specifically addressed in Morris.


Practice tip: If the claimant is postponing surgery to treat for a non-work related condition, we recommend writing to the treating physician/or an independent medical expert to address whether the claimant is at end of healing for the medical condition for which surgery was recommended. This will provide a basis to terminate TTD/TPD benefits under the statute until the claimant enters a renewed period of disability in the post-surgical period.  Treating physicians will often refuse to write these opinions for various reasons (effect on the claimant’s benefits, payment of medical expense, etc.), so requesting an independent medical examiner to address the issue is often the best option.