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Shoulder Combined with Scheduled Member Compensated Industrially Under ‘Catch All’ Provision

• Sep 20, 2021

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Legal Update by Attorney Alison Stewart and Law Clerk Jordan Gehlhaar

In August of 2018, Claimant Carmer sustained an injury to her right shoulder while working for Nordstrom, Inc. The employer accepted liability for the right shoulder injury. Carmer underwent a right shoulder surgery and reached maximum medical improvement (MMI) on May 8, 2019 at which time she was released without restriction. Subsequently, her right shoulder condition worsened and she reportedly used her left upper extremity more due to “favoring” of her right. At this time she was no longer working due to unrelated mental conditions.

Carmer reported her worsening symptoms to her previous employer and requested medical care. The employer sent Carmer for an independent medical examination (IME) with Dr. Milani. He found her left shoulder pain to have an unknown etiology, but likely from an underlying degenerative change or rheumatologic disorder. She subsequently underwent a second IME with Dr. Segal. He diagnosed the Claimant with left shoulder arthropathy “caused in part by overuse and compensation due to the right shoulder injury.” He recommended further evaluation and treatment of both shoulders.

Nordstrom denied that Carmer sustained a compensable injury to the left shoulder, contending any symptoms were related to underlying arthritis or joint problems. In the arbitration decision, the Deputy found Dr. Segal’s causation opinion more persuasive than Dr. Milani’s. As such, it was found that the claimant sustained both a right shoulder injury and a sequela to the left shoulder. This presented a novel issue: What statute governs compensation for a bilateral shoulder injury?

The employer asserted the injury was to be compensated under the schedule and therefore functional disability analysis; the claimant argued the injuries should be compensated industrially under the “catch all” provision. This was a matter of statutory interpretation. The legislature has set compensation for the “loss of a shoulder” and for the loss of multiple arms, hands, feet, legs, or eyes. See Iowa Code §§ 85.34 (2)(n), (t) (2017). However, it neglected to specifically address compensation for the loss of both shoulders. Therefore, the Deputy concluded that the bilateral shoulder injury had to be compensated industrially under 85.34 (2)(v) because it was a case other than those described in subsections a through t.

A similar issue was addressed in Anderson v. Bridgestone Americas Inc. The Claimant was found to have a right arm injury and a right shoulder injury. The issue again was what subsection of 85.34, and therefore what disability analysis, dictates compensation. The Deputy considered several possibilities:

• 250 weeks for the loss of two-thirds of the part of the arm between the elbow and shoulder;
• 400 weeks for the loss of a shoulder;
• 500 weeks for the loss of both arms, hands, feet, legs, eyes, or combination of two thereof in a single accident;
• The number of weeks in relation to 500 weeks as the reduction in the employee’s earning capacity for all other cases than those specifically described by the legislature.

See Iowa Code §§ 85.34 (m)–(n), (t), (v) (2017).

The Deputy found that the first three sections only apply in cases where the employee sustains a loss of the specific scheduled body part or parts described. Since the claimant had suffered a loss of both the right arm and the right shoulder—a combination of injuries not detailed in the statute—the compensation then lands in the “catch all” provision calling for industrial disability analysis.

Absent statutory amendment, an injury to both shoulders, a shoulder and another body part, or two body parts not specifically defined together will likely result in industrial disability analysis rather than functional.

Peddicord Wharton will continue to monitor case law on this issue.

 

 

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