Legal battle over UWM employe’s fall from chair may finally be over

Nine years ago, a woman working at the University of Wisconsin-Milwaukee reached to pick up a paper under her desk and fell out of her chair, which flipped over and pinned her.

This week, an appeals court may have finally ended nearly a decade of litigation over how much worker’s compensation she deserves for that office accident.

Theresa Payton-Myrick, an employee of the University of Wisconsin System since 1990, was working as an administrative assistant at UWM at the time of the July 2009 incident. She saw a doctor the next day, who diagnosed acute neck and shoulder strain and ordered an MRI, which showed degenerative spinal disc disease, a condition from which she’d suffered for years prior.

In December, a neurosurgeon concluded the fall accelerated her pre-existing condition “beyond normal progression” and recommended two-level spinal fusion surgery.

The following February, UW officials asked another doctor to see PaytonMyrick. He said the work injury was a soft-tissue injury that likely had already healed and did not believe the surgery was necessary.

But Payton-Myrick chose the operation, in March 2010 and again in February 2011 because the first surgery was not fully successful.

Afterward, she couldn’t sit or stand more than an hour at a time, had trouble sleeping, constant leg spasms and couldn’t lift more than 10 pounds — rendering her disabled, for work purposes.

She claims it was a result of surgery that was necessary to address the work injury. She had already collected worker’s compensation for the months after falling from her chair until the UW’s doctor concluded she had healed. She didn’t return to work in March 2010 because of the first surgery, and when she was denied medical and disability benefits, she filed claims with the UW System and the Department of Workforce Development.

Another doctor for UW concluded any treatment Payton-Myrick got after October 2009 was not to treat any injury she suffered from the office fall.

By August 2014, the matter was before an administrative law judge. Hearing only from Payton-Myrick in person, he rejected the conclusions of the UW System’s doctors and granted her another 16 months of worker’s compensation and a “50% functional permanent partial disability.”

The Labor and Industry Review Commission reversed that decision, siding with the UW System doctors. Then Payton-Myrick appealed to Milwaukee County Circuit Court.

Judge Stephanie Rothstein decided the LIRC needed to reconsider the matter and determine whether PaytonMyrick underwent the spinal surgery in “good faith” that it was addressing a work injury, not a pre-existing condition, and whether that entitled her to further benefits.

The LIRC appealed that ruling, which resulted in Tuesday’s decision from the Court of Appeals.

A state statute does say that if an injured employee, in good faith, undergoes surgery that is unnecessary, but generally medically acceptable, they are entitled to compensation if disability results.

After Rothstein considered PaytonMyrick’s case, the Supreme Court ruled in another case that the statute only applies if the unnecessary-but-acceptable surgery is to address the workplace injury.

Because the LIRC concluded PaytonMyrick’s two spinal surgeries were focused on her pre-existing disc problems, the Court of Appeals upheld its denial of further benefits.

“Disability resulting from treatment that is not necessary for treating the work injury is not compensable under the worker’s compensation scheme or” the statutes, the District 1 court found in an opinion from judges Kitty Brennan, William Brash and Joan Kessler.