As our readers will recall, in February the Appellate Court made an astonishing decision wherein a shoulder injury was determined not to be a specific loss compensable under Section 8(e) of the Act but rather one to consider under Section 8(d)2, the person as a whole provision. The court focused on the dictionary meaning of the word ‘shoulder’ and the location of the actual physical insult in finding that where the structures of the arm itself were not involved, the injury was compensable as one to the whole body.
Many observers were of the opinion that the court would permit a rehearing and that the Supreme Court would eventually weigh in on this subject, but in an order dated July 9, 2012, the petition for rehearing filed by the Will County Forest Preserve was denied by a unanimous court. Justices also filed a statement that the case does not involvea substantial question warranting the consideration of the Supreme Court.
Whether this decision effectively eliminates the schedule of loss set forth in Section 8(e) is a matter of some conjecture, but we will not be surprised to see the legislature take up the subject. If it does, one can only hope that the attempt to remediate Section 8(e) will include a modification to Section 8(d)2 which makes explicit that this provision is available only in cases where a member is not affected, and that injuries to joints must be considered in terms of their effects, as opposed to the mere geographical location of an injury.
The schedule of loss set out in Section 8(e) has been an integral part of the Act for a century. When the legislature grafted Section 8(d)2 to the Act in 1975, the intention was to provide for injuries to the body such as spinal and head injuries, not to destroy the architecture of the Act.
The schedule, with its corresponding provision of credit for prior losses, should be preserved. That stated, an injury occurring on or after September 1, 2011 is subject to an AMA impairment rating, which for a shoulder injury can be determined as a loss of the person. If the Act is amended to allow for credits of prior 8(d)2 losses, the decision may prove to be much ado about nothing.
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