UPDATE: Will County Forest Preserve District v. Illinois Workers' Compensation Commission

2012 III. App. (3d) 110077WC

By: Keith J. Herman - Partner - Nyhan, Bambrick, Kinzie & Lowry

Updated: November 22, 2010

 

On July 5, 2012, the Appellate Court of Illinois for the Third District denied the Petition for Rehearing filed in Will County Forest Preserve v. Illinois Workers’ Compensation Commission, 2012 Ill. App. (3d) 110077WC, and refused to certify the case for appeal to the Illinois Supreme Court. As a result, the Appellate Court has ruled that injuries to the shoulder are no longer to be considered as injuries to the arm under Section 8(e)(10) of the Act, but are to be assessed as injuries to the person as a whole under Section 8(d)(2) of the Act. Thus, for Workers’ Compensation purposes, a shoulder is no longer considered part of the arm under Section 8(e)(10) of the Act.

The results of this ruling have yet to take full effect, but employers can expect Arbitrators and Commissioners at the Illinois Workers’ Compensation Commission to begin adjudicating shoulder injuries on a man as a whole basis within the very near future. This ruling will likely prevent employers from claiming credit for previous injuries to the shoulder that had been held to be arm injuries.

Please see the case summary below for an overview of the initial Appellate Court ruling in the underlying case.

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Petitioner sustained an injury to his right shoulder while employed by the Forest Preserve District of Will County on June 2, 2008. Petitioner had surgery, physical therapy and work hardening. On November 24, 2008, Dr. Harry Fuentes released petitioner to work full duty, without limitations and he had no additional medical treatment to his right shoulder. On May 12, 2009, petitioner was examined by Dr. Jeffrey Coe, at the request of his attorney, who opined that the right shoulder injury caused “permanent partial disability to the right arm.” The Arbitrator awarded 25% person as a whole under subpart three of Section 8(d)(2) of the Act because petitioner sustained 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 Commission adopted the decision of the Arbitrator and the Circuit Court confirmed the decision of the Commission. The employer appealed.

On appeal, the employer argued that an award for a person as a whole under Section 8(d)2 was improper because the petitioner failed to establish that this incapacity prevented him “from pursuing the duties of his usual and customary line of employment” because the petitioner returned to work full duty resuming all prior job activities, was under no medical restrictions and had not sought any additional treatment for his right shoulder and therefore, the Commission should have awarded benefits for a scheduled injury to the arm as set forth in Section 8(e)(10) of the Act.

The Appellate Court affirmed the Commission decision to award benefits to petitioner under Section 8(d)(2) but held that the benefits were proper only under the first subpart of Section 8(d)2, and not, as the Commission concluded, under subpart three of Section 8(d)2, because it was against the manifest weight of the evidence.

In its reasoning, the Court noted that since the petitioner had returned to work full duty, had not sought any additional medical treatment and was not under any medical restrictions then the Commission decision to award benefits under subpart three of Section 8 (d)2 was not proper.

The Court also rejected the employer’s argument that petitioner’s shoulder injury should be compensated as a scheduled loss to the right arm under Section 8(e)(10) because the plain meaning of the statute establishes that the arm and the shoulder are distinct parts of the body and since petitioner sustained an injury to his shoulder, then an award for a scheduled loss to the arm under Section 8(e)(10) would be improper.

The Court further reasoned that the evidence clearly established an injury to the shoulder, not to the arm and while the injury to the right shoulder may impact the use of his arm, the initial injury was to his shoulder, and a scheduled award for the loss of use of the right arm would therefore be inappropriate. Thus, the Court found the first subpart of Section 8(d)2 to be applicable since that provision provides for a person asawhole award where the petitioner has sustained serious and permanent injuries not covered by Section 8(c) or 8(e) of the Act.

Finally, the Court also rejected the employer’s argument that the shoulder is not an arm for purposes of the statutory schedule had been waived because the claimant did not raise the issue “at trial level.” The Court noted that although the issue was not raised before the Commission, it was raised in front of the Circuit Court and noted it may override considerations of waiver in furtherance of a just result.

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