The Spencer Rule in Wisconsin’s workers’ compensation can in narrow circumstances get an injured worker weekly benefits even if the comp carrier denies a medical treatment. Workers compensation insurance companies can deny paying for medical treatment for two basic reasons: A) the injury is not a work-related condition; or B) even if the employee has a work-related condition, the disputed treatment is not directed to cure or relieve the effects of the work-related condition. While most disputed cases involve defense A, this article deals with defense B. This dispute is usually raised by an independent medical examiner report (IME) who states for example, the worker has a herniated disc L5-S1 disc caused in part by an accident at work, but he doesn’t need fusion surgery to cure or relieve the effects of the work-related injury to the disc. The IME will claim a fusion is not necessary, and if it is done, it is for an unrelated pre-existing condition. If its only saying not necessary, then TTD may be due.
The Wisconsin supreme court in Spencer v DILHR, 55 Wis 2d 525 (1972) ruled that in cases of a 1) conceded injury and 2) where the treatment was directed to cure or relieve the conceded injury, then the employer is responsible even if it turns out the disputed treatment was not medically necessary.
Wis. Stats. Sec. 102.42 (1m) codified but limited the Spencer Rule, to invasive treatment, for example a surgery. Under this statute, the employer is liable to pay indemnity, temporary total disability weekly checks, while the worker is off even if the surgery was unnecessary if: it’s a conceded injury, the employee undertook the treatment in good faith, its invasive (surgery), and its medically acceptable treatment. The employer can still dispute paying the medical bill under Wis. Stats. Sec. 102.16 (2m) and DWD 80.73.
Note the Spencer Rule second element “directed to cure or relieve the conceded injury.” Unfortunately, Spencer rarely applies because most times the IME doesn’t just claim the surgery is unnecessary, it states that a surgery is for the pre-existing condition, not the conceded work injury. This is a hollow argument, especially when the surgery and conceded injury are at the same level, say L5-S1. A worker may have had some pre-existing degeneration at L5-S1 but if a post-injury MRI shows a recent herniation – this is where Spencer should apply.
At McCormick Law Office in Milwaukee, Wisconsin our attorneys get the best results representing injured workers by advancing honest and trustworthy arguments such as the Rule of Spencer on behalf of our clients. Spencer comes up in cases involving neck or low back fusion, discectomy, laminectomy or foraminotomy surgery.
