A Simple Guide to Reattaching the Shoulder and the Arm Following Illinois Court Decision

On Feb. 17, 2012 the Workers' Compensation Commission Division of the Illinois Appellate Court decided a case entitled, Will County Forest Preserve District a/k/a Forest Preserve District of Will County v The Illinois Workers' Compensation Commission  (hereinafter “Will County”). 

In Will County the Court was asked to decide if shoulder injuries should be compensated under Section 8(d)2 of the Workers Compensation Act, (more commonly known as the “person as a whole” section), instead of under the specific loss provisions contained in Section 8(e)(10).   This is an issue that has significant and immediate consequences.  Under Section 8(e)(10) an arm is worth 253 weeks but Section 8(d) is worth 500 weeks.  So, any decision that puts shoulder injuries into the larger category automatically increases the value of shoulder claims. 

According to the Will County decision Section 8(d)2 provides for benefits in any of the following three situation:

1. Where a claimant sustains serious and permanent injuries not covered by section 8(c) (relating to injuries resulting in disfigurement)) 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 impairment; 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.

In Will County the Illinois Workers' Compensation Commission had awarded the claimant benefits under Section 8(d)2 relying on the third factor concluding that the injuries that the claimant had sustained had prevented him from pursuing the duties of his usual and customary line of employment.

The employer had appealed that finding arguing instead that the claimant should be compensated under Section 8(e)(10) of the Act.  The employer argued on appeal that there was no evidence that the injuries in question had prevented the claimant from pursuing the duties of his usual and customary line of employment and that an award under Section 8(d)2 was improper. 

The Appellate Court agreed with the employer finding:

Based on this evidence, we find that the Commission's award of benefits for the loss of a person as a whole under section 8(d)2 on the basis that the injury to claimant's right shoulder “partially incapacitate[s] him from pursuing the duties of his usual and customary line of employment” is against the manifest weight of the evidence. The record simply does not support this finding.

If the court had stopped there, this would have been the correct result.  Instead, the court went on to find that the claimant was entitled to the identical award but under the section contained in Section 8(d)2 that compensates employees for injuries that are not covered by the specific loss provisions contained in Sections 8(c) or 8(e) of the Act.  A conclusion that can only be reached if the shoulder is no longer considered part of the arm.

According to the Court, the employer's argument erroneously “assumed” that an injury to the shoulder is an injury to the arm and should be compensated under Section 8(e) of the Workers' Compensation Act. 

Relying on decisions from other jurisdictions and ignoring a century of decisions in this jurisdiction the court concluded that “because the plain and ordinary meaning of the statute establishes that the arm and the shoulder are distinct parts of the body, if claimant sustains injury to the shoulder, an award for scheduled loss of the arm would be improper.” 

Therefore from this date forward shoulder injuries are to be compensated under Section 8(d)2 instead of Section 8(e).  This decision has several ramifications to every Illinois employer.  Shoulder injuries will now be compensated as a percentage of 500 weeks instead of 253 weeks.  Unlike scheduled injuries which allow for credits for prior recoveries, Section 8(d-2) has no credit system in place.  Therefore, claimants who suffer multiple injuries to the shoulder can obtain subsequent recoveries without any deductions for their prior claims.

There is a quick and immediate solution.  Given the significance of this case a motion for re-hearing relying on the clear language of the Act and consistent with prior statutory interpretation should immediately be filed emphasizing all of the language contained in Section 8(e)(10) of the Workers Compensation Act not just a selective part of that section. 

Section 8(e)(10), contains clear and unambiguous language that shoulder injuries are to be compensated as part of the arm.  According to Section 8(e)(10), “where the accidental injury results in the amputation of an arm at the shoulder joint, or so close to shoulder joint that an artificial arm cannot be used, or results in the disarticulation of an arm at the shoulder joint, in which case compensation for an additional …….70 weeks (if the accidental injury occurs on or after February 1, 2006) shall be paid.” 

In other words, when the shoulder is disarticulated at the shoulder joint, the Act adds considers this loss to be part of the arm and adds 70 weeks to the 253 weeks provided by Section 8(e)(10).  It doesn't suggest in any way that the disarticulation at the shoulder should be compensated in any other Section of the Act.

About the Authors:

Maciorowski, Sackmann & Ulrich is an aggressive defense firm specializing in handling the defense of Workers' Compensation claims for employers. Each of the Firm's partners has over twenty-five years experience in managing and defending workers' compensation claims, and workers' compensation related issues.

The Firm has extensive litigation experience in the area of Worker's Compensation Arbitration, Review and Appeals in the Circuit Court, and the Illinois Appellate Court.

You may learn more at their website, www.msulaw.com.

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