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Shoulder Injuries Are Not Injuries to the Arm as a Matter of Law

By John F. Kamin

As if it was not bad enough… the Appellate Court recently issued an opinion holding that shoulder injuries are not injuries to the arm as a matter of law.

In Will County Forest Preserve v. Illinois Workers’ Compensation Commission, 2012 WL 592319 (3d Dist. 2012), the Petitioner sustained a compensable shoulder injury and the Commission had concluded that it “partially incapacitated him from pursuing the duties of his usual and customary employment.” As a result, the Petitioner was awarded benefits based upon 25% loss use of a man as a whole, as opposed to loss use of the arm. Interestingly, the Petitioner had received a prior award of 15% of an arm, and I expect one of the reasons the Petitioner claimed loss use of a man as a whole (as opposed to 50% loss use of an arm), was to avoid the credit due employer.

On appeal, the employer argued that the Commission erred in concluding that the Petitioner was entitled to benefits based upon Section 8(d)(2) (man as a whole) because he was not partially incapacitated from pursing the duties of his usual and customary employment. Petitioner was able to do all of his essential job duties including loading 50-60 pound bags of concrete and driving a truck. Petitioner testified that before the accident he was able to lift 75-80 pounds overhead with his injured arm but that after the injury he typically limited his overhead lifting to 50 pounds. Further, he stated that he would compensate for the loss of strength by using his other arm more.

The Appellate Court then reviewed the record and noted that there were three (3) bases to award Petitioner benefits for man as a whole under Section 8(d)(2) as follows:

  1. Where the claimant sustained serious and permanent injury not covered under 8(c) (disfigurement), or Section 8(e) (specific loss);
  2. Where the claimant was covered under Section 8(c) or 8(e) but also sustains other injuries which are not covered by those two (2) sections…; or
  3. Where claimant suffers injuries which partially incapacitate him from pursuing the duties of his ususal and customary employment but do not result in impairment of earning capacity.

On appeal, the Court then reviewed the medical testimony as well as Petitioner’s testimony and noted the Petitioner worked in the medium to medium-heavy physical demand level as a heavy equipment operator prior to the injury. The Petitioner continued to be able to perform all of those duties, function at that level and had returned to his pre-injury employment. The Court noted that there was no evidence that the Petitioner’s duties required modification, that he performed his job at a slower pace or that he was less productive or missed work because of his injury or refused any work because of his injury. Based on that evidence, the Court found that an award for loss use of a man as a whole on the basis that Petitioner’s injury partially incapacitated him from pursing the duties of his usual and customary employment was against the manifest weight of the evidence.

However, the Court then went on to decide if there were any other bases to award benefits under Section 8(d)(2) under the Act. The employer had insisted that the shoulder injury should be compensated based upon loss use of the arm. The Court stated this argument assumed that an injury to the shoulder was an injury to the arm. The Court then reviewed Stedman’s Medical Dictionary and noted that an arm was defined as, “the segment of the upper limb between the shoulder and the elbow; commonly used to mean the whole superior limb.” The Court then concluded that based upon the plain and ordinary meaning the statute, an arm and the shoulder were distinct parts of the body and that if a claimant sustained an injury to his shoulder an award for a scheduled loss to the arm would be improper. The Petitioner’s injury involved a partial rotator cuff tear of the right shoulder with a possible inferior labral tear. Petitioner had undergone right rotator cuff repair, subacromial decompression with acromioplasty. The Court concluded that the capsule of the shoulder joint was involved in the surgery and as such benefits should be awarded based upon loss use of a person as a whole, not the arm. Interestingly, the Respondent pointed out that the Petitioner had not raised this issue before the Commission and had never claimed that an injury to the shoulder was not an injury to the arm until after the appeal to the Circuit Court. The Court then noted that waiver was a rule of administrative convenience and decided to override considerations of waiver in furtherance of providing a just result.

Practically, I expect the typical award for 30% of an arm will become 15% loss use of a person as a whole. While the weeks of PPD awarded may not change, the characterization of same will. The most significant impact will be that credits for prior awards or settlements for loss use of an injured extremity will be lost as related to current and future shoulder injuries. Further, the Court failed to recognize or understand the reality that the Commission has rendered awards and approved settlements for shoulder injuries on the basis of loss use of an arm for decades. Unfortunately, my impression is that the Court relied on a medical dictionary definition of an arm in order to achieve a desired result without recognizing or appreciating the impact the decision will have on thousands of other cases.

I anticipate more litigation as to whether an injury involved the arm as opposed to the shoulder. Specifically, cases involving a distal clavicle excision where treatment is rendered in a bone in the shoulder capsule will be considered man as a whole wherein a tear to the proximal biceps tendon may still be considered the arm as the insertion of the point of the tendon is below the joint. I do not believe that this decision prompts or requires carriers to re-evaluate reserves for arm injuries, unless the reserve has been adjusted or reduced due to anticipated credit from a prior award on the injured arm. Finally, I expect efforts will be made in the legislature to address this Decision.

Originally published in the Spring 2012 edition of Quinn Quarterly.