4-17-12; Will County Forest Preserve District Redux. Does the IL WC Act need legislative clarification to confirm a shoulder is still the arm?

You read about the recent Appellate Court, Workers’ Compensation Division ruling which indicated 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.” To recap—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. The IWCC, Circuit Court and Appellate Court all affirmed.


We were advised at least one Arbitrator has announced his/her intention to apply this new “no-credit” concept for arm/shoulder injuries to leg/hip injuries.


It appears that ruling has spurred at least one lawmaker to mount an effort to take some action to keep common sense in a sometimes nonsensical system. Representative Dwight Kay (R) 112th District has filed a proposal to clarify. The synopsis as introduced amends the Workers' Compensation Act to provide that, in computing the compensation to be paid to an employee who, before the accident for which the employee claims compensation, had previously sustained an injury resulting in the payment of compensation for a percentage of partial disability, that percentage of partial disability shall be deducted from any award made for a subsequent injury to the same portion of the body as was involved in the prior injury for which compensation was paid; however, nothing in those provisions permits cumulative awards for compensation for partial disability to exceed 500 weeks, which shall constitute complete loss of use of the body as a whole.


Essentially, that provision appears to be an attempt to limit cumulative awards to the value of the total loss of the body—while it may not be the implementation of a credit for “man as a whole” awards, it does appear to read as a limitation which after multiple claims could effectively end PPD for a person who has received “man as a whole” awards up to 500 weeks.


It also provides that, for purposes of computing compensation in nonfatal cases, injuries to the shoulder shall be considered to be injuries to part of the arm and injuries to the hip shall be considered to be injuries to part of the leg and also provides that those amendatory changes are declarative of existing law and are not new enactments and that the legislation would be effective immediately.


We will have to wait and see if the legislation goes through although it could be rendered moot if the Illinois Supreme Court grants certiorari or the Appellate Court grants reported motion for rehearing pending in the Will County Forest Preserve District v. IWCC case and decides to revert back to the 100 years of case law they overturned with that decision. Until then, the confusion continues with any claim ripe for settlement or hearing where “shoulder” is mentioned in the medical notes.


We welcome your thoughts and comments. Please feel free to post them on our award-winning blog or you can LiveChat about it—information on LiveChat is on our website; see below. This article was researched and written by Shawn R. Biery, J.D., MSSC. You can email Shawn at sbiery@keefe-law.com.