2-27-12; Appellate Dislocation in IL WC--the Shoulder Bone is No Longer Connected to the Arm Bone

The Illinois WC Defense Community continues to reel from one of the strangest/weirdest/oddest rulings in over a century of IL WC law—our Appellate Court, Workers’ Compensation Division rules injuries to the “shoulder” cannot be compensated as being part of the “arm” and are now, by law, a part of the “body as a whole.” This ruling has to be unique, unexpected and unmatched across our country—is there any state that routinely provides only “body as a whole” benefits for shoulder injuries?

Before you consider jumping out a window, relax. All that has actually happened if this decision remains “new” law is there won’t be a PPD credit to the Illinois employer for shoulder injuries, assuming anyone knows what a shoulder might now be (see our further analysis below). In our view, when/if the ruling becomes final, reserves on some shoulder claims may have to be technically changed to reflect BAW values rather than arm values. Please note an ‘arm’ in Illinois WC is worth 253 weeks while BAW is worth 500 weeks—we don’t feel the veteran Arbitrators and Commissioners are going to suddenly award double PPD values for the new “shoulder” claims by switching to BAW but one never knows. Please note this award, if it was given at the IWCC’s new max PPD rate, would give this claimant a whopping $113,397.41. No state in the United States provides anything close to that much money for a shoulder surgery with a full duty return.

Please also note claimant could conceivably have another shoulder surgery and get another 25% BAW or the equivalent of about 50% more LOU of the arm. And then another surgery for another 25% BAW or the equivalent of 50% more LOU arm. And then another 25% BAW or the equivalent of 50% more LOU arm. We have claims in our office right now where claimants have two and three shoulder revisions with a total shoulder replacement at the end. We ask our readers the silly question—if such claimants have three and four surgeries, can they ask for 95% BAW or the equivalent of about 200% LOU of the arm??? Can they ask for 125% BAW?

One can also wonder if the Big Three—Governor Quinn, Senate President Cullerton and House Speaker Madigan are going to be happy to hear their WC reform efforts are being stymied in the courts—it would take the legislature and Governor about an hour to completely reverse this concept by simply providing PPD credit for BAW awards. We hope they are listening because we know lots of our business leaders and KC&A clients don’t consider this news to be encouraging to the business/jobs climate in our state.

Why did this happen? The ruling basically contradicts over a hundred years of WC law and practice in this state—shoulders have always been viewed as part of the arm. For reasons we outline below, we don’t feel the ruling makes common or more important, medical sense. We have advised our readers there is what we consider to be a mildly eccentric group of Illinois Plaintiff-Petitioner lawyers who may have the ears of our reviewing courts. These lawyers regularly, routinely and legally donate to judicial campaigns and trust us, their legal theories receive careful attention and consideration when presented to the IWCC and then our judiciary at every level.

For one other example, this unconventional group of Plaintiff-Petitioner lawyers are trying to have vocational rehabilitation magically transform into medical care! Why?—well, employees get to choose medical care, sort of and if voc rehab turns into medical care, IL employers won’t be able to defend themselves in major claims. The Illinois WC Commission has already signed onto this nutty theory in one ruling and we will have to wait and see if this concept makes it to the higher courts to become law, like this shoulder-as-BAW concept just did.

The problems we feel arise from these peculiar theories reaching our jurists is various:

v  The theories of the Plaintiff-Petitioner bar all make sense to them but they truly don’t vet them to the other side of the matrix to obtain any perspective on what everyone wants from judicial changes to our law;

v  Some of the theories truly aren’t well-thought out and are unquestionably controversial;

v  No one knows what the true cost of the theories will be to Illinois business and government entities—the reviewing courts don’t and can’t hold legislative hearings to measure such things;

v  These ITLA members want to strike-while-the-iron-is-hot and “un-reform” the IL WC reforms while they are politically empowered to do so, and

v  All of it gives outsiders the impression our Illinois reviewing courts are one-sided or “run” by the Plaintiff-Petitioner bar—we feel this creates anti-lawyer and anti-litigation sentiment particularly among our business leaders.

We caution all of the members of our Appellate Court, Workers’ Compensation Division are veteran and knowledgeable jurists. Many of them have encyclopedic recall of important rulings. They are not beholden to anyone and make the rulings they feel best on the facts and the law. But on this extraordinarily unusual, controversial and unprecedented decision, we respectfully and completely disagree with the Court’s members’ ruling and its underlying reasoning. We also don’t think there was any compelling reason for them to create the confusion this ruling is certain to cause.

In Will County Forest Preserve District v. IWCC, (No. 3-11-0077WC, issued February 17, 2012), the Illinois Appellate Court, Workers’ Compensation Division was faced with a claimant who suffered an injury to his shoulder. He underwent a shoulder injury with uneventful surgery. He returned to work to work full duty. There was no dispute claimant already received 15% LOU of the same arm in a prior settlement. If you know Illinois WC law, awards and settlements under Section 8(e) of our IL WC Act provide for a “credit” to the employer for a second, third or successive injury from any prior settlement or award. So for example, in this claim, Petitioner would have to receive an award or settlement of 50% LOU of the arm to actually receive 35% PPD at present. To get the odd streak moving forward, a now-retired Arbitrator issued a PPD award for the shoulder/arm injury under a different section of our Act. He provided claimant 25% “body as a whole” under Section 8(d-2) of the Act for this shoulder injury. In so doing, the Arbitrator first awarded a ton of money in permanency for someone who was back to full work at the same rate of pay. The Arbitrator also noted there would be no statutory credit given to the employer for the prior settlement of 15% LOU of the same arm—Section 8(d-2) doesn’t have such a provision.

In effect, we feel this award was the equivalent of 64.4% LOU of the arm for a relatively routine surgery with a full duty return! In other states, claimants with such injuries and recoveries might receive nothing in permanency due to the full duty return without any loss of wages—in Illinois, our hearing officers and reviewing courts probably gave him a tax-free PPD bonus equivalent to about two years of regular pay!

The Illinois Workers’ Compensation Commission quickly affirmed the Arbitrator with even the management member signing off on this concept. The Circuit Court confirmed the Commission ruling. The Appellate Court unanimously affirmed. To do so, someone pulls out two dictionaries and they point out the “arm” is to now be defined as the part of our bodies between the shoulder and the wrist. Therefore, the shoulder is determined to have lost its “arm-ness” and is now moved back to the body.

What a complete and hilarious mess!!!???? There are so many things weird/eccentric and odd about this concept it is difficult to know where to begin. In no particular order:

Ø  Won’t this now make all “hip” injuries into “body as a whole” too? Isn’t the “leg” the part of the body between the hip and the ankle? Isn’t that going to make things even more confused and unpredictable?

Ø  We have had about 103 years of IL workers’ comp claims in our state—shoulder injuries have routinely been handled as loss of use of the arm, as they are in all states.

Ø  Section 8(d-2) of our IL WC Act was not part of the original WC legislative scheme and was added in the mid-1980’s—did shoulder injuries previously fall into a WC netherworld where no PPD benefits were owed? Could employers sue the claimants with pre-8(d-2) shoulder awards to get their money back?

Ø  Right now, if you look at Q-Dex®, the long-time database for IL WC injury values at http://www.qdex.com, they have a category called Arm/Shoulder and, over the years, they list thousands and thousands of values for “arm” awards resulting from shoulder strains/surgeries/replacements—now they are going to have to change that database, sort of/maybe? Should they have a new Shoulder/Body as a Whole category?

Ø  What, pray tell, is the legal definition of the shoulder? Isn’t it where the humerus or the biggest bone in your arm is attached to your scapula—if you break or fracture your upper humerus at the “shoulder” isn’t that an arm bone injury or is it now a “body as a whole” injury?

Ø  Similarly, if you dislocate/separate your humerus or arm bone from the joint, is that an arm injury or a “shoulder” injury? Is it a “shoulder separation” or a “body separation”?

Ø  If you rupture your bicipital tendon, it affects an “arm” muscle where it attaches at or below the “shoulder” joint—is that an arm injury or a “body as a whole” problem?

Ø  Please note an “arm” amputated at the “shoulder” is covered in Section 8(e) of the Act and merits 70 weeks in additional benefits from our legislature—from that concept, it would appear the legislature felt the arm and the shoulder were one body part. Is an “arm” amputated at the “shoulder” now a “body as a whole” amputation? Does the injured worker get 323 weeks for loss of the arm or 500 weeks for loss of the body?

Ø  Numerous defense clients and other observers have pointed out this is all covered in the concept of impairment ratings—an injury to the shoulder of the type suffered by this claimant that might cause arm impairment at a 20% level could be considered an impairment to the body at perhaps a 5% level. This again puts new emphasis on the need for insurance carriers, TPA’s and defense attorneys to start using impairment ratings.

All of this makes us think how funny it is to keep hearing our hapless Governor telling Illinois business and anyone who will listen our WC system was reformed and costs are going down to then hear a claimant is getting 64.4% of the arm for an operated shoulder where he is back to full work at the same rate of pay. Sure, our business leaders truly believe you, Gov. Sure, someone has told Illinois Supreme Court Chief Justice Kilbride about these issues and he has relayed that economic/political concern to the courts below. Sure.

Finally, please also note the ruling isn’t yet final—it may be recalled by the Court and revised or amended. It can be certified for further appeal to the Illinois Supreme Court. As we outline above, the Illinois legislature to “reverse” it with one sentence providing BAW credit. But we were made aware another defense firm said this ruling when and if it goes final won’t affect current claims—we completely disagree with that advice. It is our reasoned legal opinion this ruling, if it becomes final, will affect any and all pending shoulder claims. All reserves are going to have to be modified. We feel it will be very difficult and unpredictable to tell our readers how to reserve shoulder injuries for the reasons we outline above.

Is it okay to play with Monopoly© money in IL WC? The new ruling is on the web at http://www.state.il.us/court/opinions/WorkersComp/2012/3110077WC.pdf. We appreciate your thoughts and comments. Please post them on our award-winning blog at www.keefe-law.com/KCAblog