News

February 04, 2012

In a shocking reversal of 100 years of practice and precedent, the Appellate Court has determined that a shoulder injury is not covered under the specific loss schedule set forth in Section 8(e)10 of the Act.  Denzil Smothers was injured while working for the Will County Forest Preserve District and ultimately underwent arthroscopic repair of the right rotator cuff and a subacromial decompression with acromioplasty.  Ultimately, he was released by his physician to full duty without limitations.  Notwithstanding this, he testified that there were certain work functions he could not perform with his right hand and also stated that he was unable to lift with the right shoulder to the extent he could before the injury (an FCE found he could, however).

For these and other complaints, the Arbitrator awarded 25% disability under Section 8(d)2 and not Section 8(e) of the Act which sets forth the schedule for specific loss, in this case the arm.  The Arbitrator determined, and the Commission affirmed, that an award under Section 8(d)2 was appropriate because Smothers sustained injuries which “partially incapacitated him from pursuing the duties of his usual and customary line of employment, but do not result in an impairment of earning capacity.”

The Circuit Court confirmed this ruling.

The Appellate Court did not accept this rationale and held that an 8(d)2 award was not appropriate

1. where a claimant sustains serious and permanent injuries not covered by Section 8(c) or Section 8(e) of the Act;
2. where a claimant covered by Section 8(c) or 8(e) of the Act also sustains other injuries which are not covered by those two Sections and such injuries do not incapacitate him from pursuing his employment, but would disable him from pursuing other suitable occupations, or which have otherwise resulted in physical impairments; or 
3. where a claimant suffers injuries which partially incapacitate him from pursuing the duties of his usual and customary line of employment, but do not result in an impairment of earning capacity.”

The Court surveyed the facts and found that the Commission’s award of benefits under Section 8(d) 2 on the basis that the injury partially incapacitated him from pursuing the duties of his usual and customary line of employment was against the manifest weight of the evidence, stating “the record simply does not support this finding.”  Then, rather than remanding the case to the Commission for a determination of disability, including under what section disability should be awarded, the Court took it upon itself to determine what Section of the Act covered Smothers’ injury.  This led to a review of the scheduled loss under Section 8(e) as regards injuries to the arm.  In so doing, the Court turned to Webster’s for guidance and determined that the “plain and ordinary meaning of the Statute establishes that the arm and the shoulder are distinct parts of the body,” so that if a claimant injures the shoulder, a scheduled loss award under Section 8(e) would be improper.  The court noted the anatomical location of the injury and the structures subject to treatment (acromion, scapula, etc.) and concluded that while the injury “may impact the use of his arm,” the initial injury was to the shoulder and thus an award for loss of use of the arm would be inappropriate.

Since the shoulder injury did not qualify as a scheduled loss, the court looked to what it felt was an applicable section, namely, the first sub-part of Section 8(d)2 which provides for disability where the claimant sustains injuries not covered by Section 8(c) or 8(e).  Since the case did not involve disfigurement and did not quality under Section 8(e)10, Section 8(d)2 was the proper source for a disability award.  Therefore, the Court affirmed the Commission decision for 25% man as a whole (125 weeks of compensation).

Comment

For those who will say that this case will be limited to its facts, your editor will kindly disagree.  All injuries to the shoulders (and, most likely, hips) where the situs of the injury is not on a structure commonly defined as part of the ‘arm’ will henceforth be subject to awards under Section 8(d)2.  What will transpire with the wrist and ankle joints is subject to conjecture, but we suspect that unless an injury is to the bones or other structures of the hand or foot, many cases previously thought to fall felt into those categories will now be arm and leg injuries.  Knee and elbow injuries are safe, for now.

More important, a PPD award for 125 weeks of compensation for an injury many feel merits perhaps half that amount seems contrary to the animus underlying the 2011 legislative changes.  Instead of the relief anticipated, the court has served Illinois employers an ‘anatomically correct’ pretext for higher awards.  This decision may serve as the source of much mischief.