On February 5, 2020 Deputy Workers’ Compensation Commissioner Michelle McGovern issued an arbitration decision in the case of Chavez v. MS Technology, LLC and Westfield Insurance Co. This is one of the first cases to interpret the new Iowa work comp law concerning shoulder injuries and a new requirement that injured workers must satisfy in order to receive industrial disability/loss of earning capacity damages.
The Claimant was 61 years old and had worked for her employer cleaning labs since 2010.
The Claimant injured her right shoulder on February 5, 2018 while squeezing water out of a mop with a broken ringer system.
The Claimant had shoulder surgery on July 11, 2018. The specific nature of the shoulder injury was very important because of the changes to the Iowa workers’ compensation law for injuries occurring after July 1, 2017. The surgery consisted of right shoulder arthroscopy and arthroscopic repair of the rotator cuff tendon of the supraspinatus, infraspinatus, and subscapularis tendons; extensive debridement of the labrum, biceps tendon, and subacromial space with biceps tenotomy and subacromial decompression.
The surgical report noted: “. . . A subacromial bursectomy was then done which showed some subacromial scar tissue present. A subacromial bursectomy and subacromial decompression was done with a shaver on the underside to remove the areas of scar tissue and fraying that was seen between the anterior aspect of the supraspinatus and the undersurface of the anterior acromion. This was decompressed, and attention was then paid to the massive rotator cuff tear. This was a large U-shaped tear. There was a posterior flap, and some of the infraspinatus tendon and teres minor were still attached posteriorly, but this was a large tear including the entire supraspinatus and around 80% of the infraspinatus. . .”
The doctor for the employer and insurance carrier rated the Claimant as having a 6% impairment of the upper extremity based on loss of strength and loss of range of motion.
The Claimant was returned to work with no formal restrictions, but she was allowed to choose what she can and cannot do on the job, and if there is something she cannot do other employees will help her.
The Claimant was seen for an independent medical examination in May of 2019. The IME physician noted that the claimant had suffered tears to multiple rotator cuff tendons. These tendons all attached to the scapula (shoulder blade) which is located on the torso.
Traditionally, Iowa workers’ compensation injuries are compensated under two systems. If an injury is in the work comp schedule, then the extent of injury is determined by the percent of functional impairment to the body.
If a body part is not listed in the schedule, then the damages for a work injury are no longer determined by this mathematical schedule, but rather by how much the injury affects the worker’s earning capacity. Unscheduled injuries are generally more valuable.
The scheduled members and the maximum amount of permanent partial disability that can be received for each body part are as follows:
Thumb 60 weeks
Index Finger 35 weeks
2nd Finger 30 weeks
3rd Finger 25 weeks
4th Finger 20 weeks
Great Toe 40 weeks
Other Toes 15 weeks
Hand 190 weeks
Arm 250 weeks
Shoulder 400 weeks
Foot 150 weeks
Leg 220 weeks
Eye 140 weeks
Loss of Hearing
One Ear 50 weeks
Both Ears 175 weeks
Face or Head 150 weeks
By way of example, an arm is worth a maximum of 250 weeks of permanent partial disability benefits. If the worker suffers a 10% injury to his arm he is entitled to 25 weeks of permanent partial disability benefits.
One of the changes to the work comp law in 2017 was to shift shoulders from the unscheduled section to the scheduled section. As a result, shoulder injuries are generally compensated on a much lower basis than they had been before.
One of the issues that has developed since the change in the law is determining when an injury is limited to the shoulder, and when it extends into the torso and becomes unscheduled. Erin Tucker from Des Moines represented the Claimant in this case and made an excellent argument for why the Claimant’s injury should be considered to extend beyond the shoulder and into the torso. Here is Ms. Tucker’s argument with the legal citations removed:
“There are several prior agency decisions defining what a ‘shoulder’ is and which parts of anatomy are considered body as a whole (aka unscheduled) injuries.
The wrist is the joint between the arm and the hand just as a shoulder is the joint between the arm and the trunk or the hip is the joint between the leg and the trunk. It is now well established that a loss of function in a joint is compensated as a part of the proximal [body side] side of the joint, not as a loss of the member on the distal [arm side] side of that joint.
The gleno-humeral joint is the dividing line between the arm and the body at the shoulder joint. Parts of the body distal to that joint are the arm. Parts of the body proximal to that joint belong to the body as a whole. The gleno-humeral joint is where the head of the humerus forms a socket (or joint) with the gleno-cavity of the scapula. The parts of the arm in that vicinity are the greater tuberosity, lesser tuberosity and bicipital groove. Parts of the body as a whole in that vicinity are the acromion process, the clavicle and the coracoid process. …The parts of the body excised or removed (during the surgery) were members of the body as a whole, more specifically, the distal end of the clavicle, the anterior and inferior aspect of the acromion and the coracoacromial ligament, which are parts of the body as a whole. None of these body parts are parts of the arm.
The dividing line between the arm and the body as a whole for workers compensation purposes is the gleno-humeral joint. This is a ball and socket joint. The ball is the head of the humerus of the arm. The socket is the gleno-cavity of the scapula, which is on the body side of the shoulder joint. Everything distal to the gleno-humeral joint is the arm. Everything proximal to the gleno-humeral joint belongs to the body as a whole. In this case, the humerus and greater tuberosity are distal to the gleno-humeral joint and are parts of the arm. At the same time the acromioclavicular joint, the lateral clavicle, the anterior and lateral acromion, the coracoacromial ligament, the coracoid, the clavicle, the subscapularis muscle and the teres major muscle mentioned in the surgical report are all parts of the body as a whole because they are located proximal to the gleno-humeral joint.
A “shoulder has been defined to be the ball and socket joint between the arm (humerus) and the trunk (scapula) which is medically called the glenohumeral joint.
If the word “shoulder” is not ambiguous under the 2017 amendments, then 85.34(2)(n) only applies to anatomical structures of the “shoulder” which is the glenohumeral joint (injuries to the humeral head [ball] or gleno-cavity [socket], or arthritis in the glenohumeral joint). The legislature chose to use the word “shoulder” as opposed to a wide variety of specific parts of human anatomy. The above cited case law supports that work injuries sustained to or affecting the area proximal (nearer to the center of the body) to the glenohumeral joint area are to be compensated as body as a whole injuries under the catch-all provision in Iowa Code § 85.34(2)(v). Therefore, it is presumed that the legislature knew how the word “shoulder” had been defined and their intent is to only change compensation for injuries that affect the glenohumeral joint only as defined by prior case law.
Deputy Commissioner McGovern found that based on the explanation of the injuries by the treating surgeon, and the opinions of the IME physician, that the Claimant’s injury was not limited to the arm or shoulder, but extended into the torso. Therefore, the Claimant was eligible to the compensated under the loss of earning capacity method.
However, another 2017 change in the Iowa law created another hurdle for the Claimant. The new law provided:
“. . . If an employee who is eligible for compensation under this paragraph returns to work or is offered work for which the employee receives or would receive the same or greater salary, wages or earnings than the employee received at the time of the injury, the employee shall be compensated based only upon the employee’s functional impairment resulting from the injury, and not in relation to the employee’s earning capacity.” Iowa Code section 85.34(2)(u).
Deputy McGovern noted that the Claimant’s earnings had not been reduced since her injury, and therefore Iowa Code section 85.34(2)(u) meant that she would be limited to the functional impairment rating.
The 2017 legal charges are still very new, and Deputy McGovern’s decision is one of the first addressing the changes regarding the shoulder and reduction in earning capacity.
There will likely be other arbitration decisions and follow-up appeals that could come to different conclusions. However, Deputy Commissioner McGovern is an expert in interpreting the law and is extremely well respected throughout the workers’ compensation community. I believe there is a very strong chance that Deputy Commissioner McGovern’s views on these laws will be followed.