by | Mar 12, 2023

In West v. Second Injury Fund of Iowa, the Iowa Workers’ Compensation Commissioner affirmed that a shoulder injury does not trigger Second Injury Fund liability under Section 85.64.

Section 85.64 of the Iowa Code provides that three requirements must be met in order to trigger liability of the Fund. First, the employee must have lost the use of a hand, arm, foot, leg, or eye. Second, the employee must sustain a loss of use to a separate member or organ listed above through a compensable injury. Third, permanent disability must exist as to both the initial injury and the second injury.

In West, prior to his current employment, the employee suffered a knee injury, which satisfied the first requirement under Section 85.64. Then, the employee suffered an undisputed work-related injury to his left shoulder during his current employment. So that the Fund liability would be triggered, the employee argued that his shoulder injury was instead a loss of use to his left arm. While the shoulder was the situs of his injury, the employee contended that it should qualify under Section 85.64 because the injury’s residual impairment was to his left arm.

First, the Deputy Commissioner determined that there is no provision within Section 85.64 created for the loss of use of a shoulder; it provides only for the loss of use of an arm. In fact, under Section 85.34(2)(m)-(n), shoulder injuries and arm injuries are separately-identified scheduled injuries.

Furthermore, the Deputy Commissioner found that an injury that merely affects an enumerated, scheduled member is not enough to qualify as an injury that triggers the Fund liability. Citing the Second Injury Fund of Iowa v. Nelson, “[e]ven if the effects of the shoulder injury extended into his arm…, this fact would not make the injury a scheduled one.”

Therefore, the Deputy Commissioner held that while the shoulder is a scheduled member injury, it is not an enumerated injury for purposes of the Fund liability under Section 85.64. Thus, the employee was precluded from entitlement to Fund benefits.

The Deputy’s finding and legal analysis were affirmed by the Commissioner on appeal and adopted as a final agency decision. This means that the holding, unless appealed, will be binding precedential authority on future Deputy Commissioner decisions.

This post was drafted by Faith Kowalski, a law clerk at Baylor Evnen. If you have questions regarding Second Injury Fund liability in your case, please call Paul Barta or Micah Hawker-Boehnke at 402-475-1075.