Appellate Court “Shoulders” the Burden of Massive Change to PPD Evaluation

In a very recent and highly significant decision issued on February 17, 2012, (Will County Forest Preserve District v. Denzil Smothers), the Appellate Court has issued a new interpretation of how shoulder injuries are to be viewed for purposes of permanent partial disability under the Act, by finding that a shoulder should not be considered part of an arm and therefore, shoulder injuries do not fall within a scheduled loss under 8(e)(10) of the Act but rather fall within the provisions of “man as a whole” under the first subsection of 8(d)2 of the Act.

A review of this highly controversial decision shows that the parties stipulated at Arbitration that the petitioner, a right hand dominant heavy equipment operator whose job was in the medium to medium heavy physical demand level, injured his right shoulder lifting the tailgate of a trailer on June 2, 2008.  The petitioner underwent arthroscopic repair of his right rotator cuff with subacromial decompression and an acromioplasty.  At the completion of a work hardening program in November 2008 it was determined that the petitioner could perform the essential functions of his regular job. At that time he told the treating doctor that his right shoulder felt “great” and he was released to full duty work on that date.  The petitioner acknowledged that he did not return to the doctor after his full duty release to work.

At the Arbitration hearing, the petitioner conceded that he had received a prior settlement in May of 2003 representing 15% loss of use of his right hand and 15% loss of use of his right arm for prior injuries related to right carpal tunnel syndrome and right cubital tunnel. He stated that he returned to regular work from these prior injuries but claimed he continued to have stiffness, soreness and weakness in his hands and elbow. After being released to full duty work for his right shoulder in November 2008, the petitioner also claimed stiffness and weakness in his right shoulder and said he compensated for his problems by using his left arm more frequently. He said he also tried to limit overhead lifting with his right shoulder and applied ice or took medication when the shoulder was sore. The petitioner’s IME physician, Dr. Coe, opined that the petitioner had permanent disability to the right arm with reduced range of motion and atrophy of the right arm and that the petitioner also continued to experience impairment to his right elbow and right wrist.

The Arbitrator awarded 25% loss of use of man as a whole under 8(d)2 of the Act, stating that the petitioner sustained injuries which partially incapacitated him from pursuing the duties of his usual and customary line of employment, finding that the petitioner could only apply the forces necessary for his job with his left, non dominant arm and that his right arm tired easily. On appeal, the respondent claimed that the award under 8(d)2 was improper as the petitioner failed to establish an incapacity that prevented him from pursuing the duties of his usual and customary line of occupation, and claimed that any award should have been a scheduled loss under Section 8(e)(10) of the Act. The Commission affirmed and adopted the Arbitrator’s decision. The Circuit court also affirmed the Commission’s decision.

The respondent appealed to the Appellate court and argued that since the petitioner had no permanent work restrictions and had not sought additional medical treatment, the award should have been on the arm under Section 8(e)(10) of the Act. The Appellate court reviewed Section 8(e)(10) of the Act in which permanent partial disability is awarded for physical loss or permanent and complete loss of use of certain body parts versus awards for man as a whole under Section 8(d)2 of the Act and concluded that there were three circumstances in which Section 8(d)2 provided for benefits:

  1. where injuries are not covered by Section 8(c)(disfigurement) or 8(e) (scheduled losses);
  2. where a claimant has injuries under 8(c) or 8(e) but has other injuries that are not covered by those two sections of the Act and the injuries do not incapacitate the claimant from pursing his employment but would disable him from pursuing other suitable occupations or otherwise result in physical impairment; or,
  3. where the 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 Appellate Court concluded that the extent of a claimant’s permanent partial disability was a question of fact for Commission and that in this case, it was against the manifest weight of the evidence for the Commission to find that the petitioner was entitled to benefits under the third subsection of 8(d)2, finding that the petitioner failed to prove that his right shoulder injuries partially incapacitated him from pursuing the duties of his usual and customary line of employment.

However, the Appellate Court also found that the respondent “assumed that an injury to the shoulder is an injury to the arm.” The court stated that it had not had a prior occasion to consider the classification of a shoulder injury and whether an injury to the shoulder is an injury to the arm under a statutory scheduled loss. They determined that whether a shoulder injury falls within the purview of Section 8(e)(10) of the Act, presented an issue of statutory construction and that the court should look to the legislature’s intent in drafting the provisions of the Act. The court found that the best indicator of the legislature’s intent in this case was the plain language of the statute, giving the statute its “plain and ordinary meaning.” The court then looked to various medical dictionaries to determine that an “arm” is defined as the area “between” (rather than inclusive of) the shoulder and elbow or “between” the shoulder and wrist. The court concluded that this definition “clearly indicates that the shoulder is not part of the arm” and cited other outside jurisdictions such as Arkansas and Iowa, whose statutes provide that injuries to a shoulder should be compensated as injury to the body as a whole rather than to the arm. The court held that because the plain and ordinary meaning of statute under Section 8(e)(10) established that an arm and a shoulder are “distinct parts of body,” if a claimant sustains an injury to the shoulder, an award for a scheduled loss to the arm under Section 8(d)(10) would be improper. As a result, the court affirmed the Award of 25% loss f the person as a whole of the Commission while recognizing that they disagreed with the Commission’s rationale in reaching its decision. On that point, the court stated that  “it may affirm a decision of Commission if there is any legal basis in the record to do so, regardless of whether the Commission’s reasoning is correct or sound.”

BOTTOM LINE:

This decision is not yet final pending the possibility of a petition for rehearing, withdrawal of the opinion and/or certification to the Supreme Court.  We recommend that since this Appellate decision is not final, no change in evaluating shoulder injuries as a potential loss of use of the arm under Section 8(e)(10) versus a man as a whole settlement/award under Section 8(d)2 should be made, but we will keep you posted as to whether this unprecedented decision will become  final. If so, this would certainly dramatically change how the Commission decides permanent disability as it relates to shoulder injuries and has the potential to affect the value of future shoulder claims by not only increasing the value of the type of injury seen here by at least 1/3, but also by erasing the Respondent’s credit for prior injuries to the arm.

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