The Commissioner Holds an Injury to Both Shoulders Results in an Industrial Disability
The Commissioner issued an important decision on December 29, 2021 that could have important implications for shoulder injury cases in Iowa. In Carmer v. Nordstrom, Inc., File No. 1656062.01 (App. Dec. 29, 2021), the Commissioner held that an injury to both shoulders (two scheduled member injuries) are not compensated separately on a 400-week basis, but are compensated industrially pursuant to the “catch-all” provision of section 85.34(2)(v).
In Carmer, the claimant injured her right shoulder in August 2018. In early 2020, some 16 months after the injury, she developed problems in her left shoulder, which she attributed to overuse from being unable to use her right shoulder. After finding that the left shoulder injury was a sequela of the right shoulder injury, and that both injuries were scheduled member injuries to the shoulder, the Commissioner said the analysis did not end there. This still left “two options: either each shoulder is compensable separately on a 400-week basis under section 85.34(2)(n), or the shoulders are compensated industrially pursuant to the ‘catch-all’ provision in section 85.34(2)(v).”
The Commissioner reasoned that when the legislature amended section 85.34(2) to make the shoulder a scheduled member, it could have—but did not—add the word “shoulder” to the list of scheduled members to be compensated on a 500-week basis when two scheduled members are injured in a single accident. In fact, the legislature did not amend that section at all (currently 85.34(2)(t), formerly 85.34(2)(s)). Because the legislature is presumed to know the law when it writes legislation, the Commissioner concluded this omission was intentional and precluded permanent disability benefits being based on a 500-week basis when both shoulders are injured in a single accident. Next, the Commissioner noted the section referred to a singular shoulder (“a” shoulder), so he reasoned an injury to both shoulders did not fall into that section. Finally, because an injury to both shoulders does not fit the section dealing with bilateral scheduled members (section 85.34(2)(t)), nor does it fit the section dealing with a singular shoulder (section 85.34(2)(n), he reasoned it must fit the “catch-all” provision of section 85.34(2)(v). He believed that to conclude otherwise might lead to absurd results; if two shoulders were compensated separately on a 400-week basis, it would be possible (however unlikely) that the injuries could amount to more than 500 weeks of compensation. Short of permanent and total disability, the maximum number of weeks payable to a claimant for injuries sustained in a single accident is 500 weeks.
We wanted to make sure everyone is aware of this recent decision. It is currently unknown whether Nordstrom will appeal this case further.
As always, please feel free to contact any of our attorneys for questions regarding this or any other workers’ compensation issues.
