An injured worker can refuse medical treatment at any time. The question becomes, are workers compensation benefits in Wisconsin still payable if the worker refuses treatment? This rarely comes up, but generally no compensation is payable for death or disability caused by an employee’s unreasonable refusal or neglect to submit to or follow competent and reasonable medical or surgical treatment. Wis. Stat. Sec. 102.42(6). The test of what is reasonable in refusing treatment is objective rather than subjective. See Braun v. Indus. Comm’n, 36 Wis. 2d 48 (1967). The workers compensation Department has not considered a refusal to submit to surgery, which involves a risk to life or limb as unreasonable. A back surgery and probably all surgery requiring general anesthesia is per se not unreasonable to decline. See also Lesh v. Ill. Steel Co., 163 Wis. 124 (1916). “Based on longstanding department policy, an employee’s refusal to submit to an invasive procedure that is hazardous to life or limb is NOT an unreasonable refusal under [Wis. Stat. §] 102.42(6).” Also, if the employer or workers comp insurer is refusing to pay for the surgery or treatment, it cannot raise the defense of a worker’s unreasonable decision to refuse treatment. Klein Industrial Salvage v. DILHR, 80 Wis. 2d 457 (1977).

In Spencer v. DILHR, 55 Wis. 2d 525 (1972), the Wisconsin supreme court stated “[w]here an employee, in good faith, accepts the recommendation of treatment of one doctor, with whom another doctor disagrees, the department cannot disregard the consequences of treatment [additional temporary disability, greater permanent disability, and further medical expense] because it finds the treatment was either unnecessary or unreasonable.” So even if the surgery is later determined not needed due to the work-related injury, the respondent is still responsible for time off due to the surgery. In Spencer, the question was not whether the treatment was work-related, but only if the particular surgery was necessary. The Spencer rule does not apply to cases in which the medical dispute is whether its work-related. See City of Wauwatosa v. LIRC, 110 Wis. 2d 298 (Ct. App. 1982).

In Honthaners Restaurants, Inc. v. LIRC, 2000 WI App 273, 240 Wis. 2d 234 the court said Spencer applies when the injured worker suffered an undisputed compensable injury and there are differing medical opinions on diagnosis and treatment, and the claimant receives unnecessary medical treatment in good faith. City of Wauwatosa controls when there is a dispute about the cause of the injury for which the claimant received unnecessary treatment. Wis. Stat. Sec. 102.42(1m), limits the Spencer rule to treatment that is both “invasive” (piercing the skin) and “generally medically acceptable.”

[nap_names id=”FIRM-NAME-1″] Milwaukee, Wisconsin.