Spencer v. DILHR
In Spencer v. DILHR, 55 Wis. 2d 525, 200 N.W.2d 611 (1972), 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 Spencer, 55 Wis. 2d 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. 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 Spencer, 55 Wis. 2d 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."
(Spencer, 55 Wis. 2d at 532.)
The 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 Spencer, 55 Wis. 2d at 532.