A New Trend in Workers’ Compensation Shoulder Cases

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After the 2017 Amendments to Iowa Code Chapter 85 provided that shoulder injuries were to be compensated functionally as scheduled member injuries, instead of industrially as whole body injuries, claimants have been looking for ways to have their shoulder injuries still compensated industrially.

Compensated disability

One argument being made more frequently is that when a work injury causes a disability to the shoulder and another scheduled member, the entire disability should be compensated industrially under the catch-all of Iowa Code section 85.34(2)(v). This subsection provides that work disabilities are to be compensated industrially if they cannot be compensated otherwise under the rest of the schedule (sections 85.34(2)(a) through (t)).

The argument goes that the rest of the schedule does not apply to this situation because sections 85.34(2)(a) through (s) are for a single disability to a finger, toe, hand, foot, arm, shoulder, leg, eye, or ear(s). Section 85.34(2)(t) arguably does not apply either because that is for a work injury involving disabilities to both hands, feet, arms, legs, or eyes or any two thereof. The shoulder is not included in that section. 

Recent cases

Deputy Workers’ Compensation Commissioners have been accepting this argument recently. For example, in Carmer v. Nordstrom, Inc., the claimant injured both shoulders (one as a sequela to the original work injury). The Deputy Commissioner awarded permanency based on an industrial disability analysis under section 85.34(2)(v).

In Anderson v. Bridgestone Americas Inc., the claimant injured his right shoulder and right arm. The deputy awarded permanency based on an industrial disability analysis in that case as well. The claimant in Chavez v. MS Technology, LLC made the same argument in Anderson. However, the argument was not addressed by the Commissioner on appeal, nor the District Court on judicial review, because it was previously concluded the claimant did not sustain a compensable right arm injury in addition to the compensable right shoulder injury.

Legal precedent

There have not been appeal decisions on the Carmer and Anderson cases yet from the Commissioner. It will be interesting to see how the Commissioner deals with these arguments in light of the following legal precedent:

Pesicka v. Snap-on Logistics Co.

When a work injury results in a disability to the arm/leg, all other disabilities to members of the arm/leg (fingers, hand, elbow, arm, toes, foot, knee) are also included in the assessment of permanency to the arm/leg. This was the recent Iowa Court of Appeal decision in Pesicka v. Snap-on Logistics Co. On appellate review, I argued on behalf of the employer that when a work injury results in disabilities to the claimant’s toes and leg, it was correctly compensated as a disability to the leg. Pesicka applied for further review in that matter, but the Iowa Supreme Court declined.

Sands v. Marian Health Center and Brugioni v. Saylor Coal Co.

When a work injury results in a disability to two scheduled members not included in section 85.34(2)(t) (i.e., fingers and toes), disability is awarded based on the individual permanent impairments to each scheduled member, multiplied by the available weeks, then added together. Like shoulders, fingers/toes are scheduled members, but are not scheduled members listed in section 85.34(2)(t).

For example, if a claimant injured her thumb and first finger, resulting in 50% permanent impairment to each, she would be compensated with 22.5 weeks of benefits (50% x 25 weeks for ring finger) + (50% x 20 weeks for little finger). E.g., Sands v. Marian Health Cntr, 662 N.W.2d 375, *3 (Iowa Ct. App. 2003) (unreported) (holding the claimant’s work injury to two fingers on her left hand resulted in disability compensation based on functional ratings and the schedule, not as an industrial disability); Brugioni v. Saylor Coal Co., 197 N.W. 470 (Iowa 1924) (noting the claimant was compensated based on disability to each of the three fingers that were injured, not industrially). 

The Big Picture

It is unlikely the Iowa legislature intended to allow industrial disability in these situations, as argued in Carmer and Anderson, but claimants have nonetheless made a novel argument. If the appellate courts do not provide a timely or satisfactory answer, it is possible the legislature may deal with the issue through a statutory amendment. Dentons Davis Brown’s Government Relations Department is monitoring the situation.

Related Resource:

Status of Shoulder Injuries After the 2017 Amendments

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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