Employers Are Still Entitled To Credit For Prior §8(e) Shoulder Awards

Dorsey v. IWCC (City of Chicago), 2016 IL App (1st) 143044WC

By: Conor P. Desmond - Associate - Nyhan, Bambrick, Kinzie & Lowry

Synopsis: If an employee received a §8(e) loss of an arm award for a shoulder injury prior to the changes instituted by Will County Forest Preserve, an employer can claim that credit in any future settlements even if that prior injury would now be compensated as loss of the person as a whole.


Facts: Petitioner injured his left arm while lifting a manhole cover on February 8, 2010. He was diagnosed with a ruptured biceps tendon and required surgery near the elbow. Petitioner successfully treated and could return to his regular job within seven months. 


Petitioner had a prior left shoulder injury which settled for 30% loss of the left arm under §8(e). This claim was prior to Will County Forest Preserve, which held shoulder injuries were to be compensated as losses to the person as a whole.


After the hearing on the 2010 injury, the Arbitrator awarded Petitioner 17% loss of use of the person as a whole under Section 8(d)2. The Arbitrator relied upon Will County Forest Preserve for the proposition injuries to the “shoulder, biceps, and elbow” were no longer considered injuries to the “arm” compensable under Section 8(e). Further, because Petitioner was being awarded benefits under §8(d)2, the Arbitrator rejected Employer’s claim for credit for the prior award. 


On review, the Commission found the arbitrator had misconstrued the holding in Will County Forest Preserve, since nowhere in that decision had the court indicated the elbow was no longer part of the arm for purposes of compensation. The Commission awarded Petitioner 37.5% loss of the left arm under §8(e). The Commission further determined Employer was entitled to a credit for the prior left arm award because the settlement had been paid under §8(e). Subtracting the credit for the prior 30% loss of the same arm, Petitioner’s net award was 7.5% of the arm. 


On appeal, the First District Appellate Court first rejected Petitioner’s argument that he had actually sustained a left shoulder injury. Next, turning to the issue of credit, the court noted credit for the prior scheduled losses listed in §8(e)17 is mandatory. The court then held Will County Forest Preserve did not retroactively change all prior shoulder awards from loss of an arm to person as a whole. Citing to Michelson v. Industrial Commission, 375 Ill. 462 (1941), the court reiterated that once approved, a settlement contract is a final award for all legal effects, including credits due in later awards; the fact that Petitioner would be compensated differently today for his prior injury does not change the fact that he was compensated under §8(e). Therefore, court held the Commission had properly concluded Employer was entitled to credit for that prior compensation.


Impact on Illinois Employers: Despite the changes instituted by Will County Forest Preserve, employers can still claim credit for prior shoulder awards compensated under §8(e). This ruling protects employers’ prior settlement contracts from changes in workers’ compensation legislation by confirming the applicability of prior award credits in future claims.








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