by | Oct 2, 2020

On September 29, 2020, the Commissioner of the Iowa Workers’ Compensation Division, Joseph Cortese, II, issued an Appeal Decision in Mary Deng v. Farmland Foods, Inc. This Decision addressed the definition of a shoulder as a scheduled member injury.

On July 1, 2017 the Iowa Legislature amended Iowa Code section 85.34(2) to include injuries to the shoulder as scheduled member injuries that are compensable for a maximum of 400 weeks with no entitlement to assessment of industrial disability. Shoulder injuries prior to July 1, 2017 are body as a whole injuries and compensated for on the basis of industrial disability.

Since shoulder injuries were statutorily changed to be considered scheduled member injuries, there have been questions regarding the definition of a shoulder and when an injury is considered a body as a whole injury. The statutory amendments did not define what constitutes a shoulder. As a result, this left it to the deputy commissioners to determine when an injury to the shoulder area should be considered a body as a whole injury. Until the Commissioner’s recent decision, there were a number of matters where deputy commissioners held that any injury that was proximal to the glenohumeral joint was actually an injury to the body as a whole and awarded benefits based on the claimant’s loss of earning capacity. That is, anything closer to the whole body than just the actual shoulder joint, was an injury to the body as a whole. This meant injuries like rotator cuff tears were sometimes being considered body as a whole injuries, rather than scheduled member injuries.

Given the questions, Commissioner Cortese addressed the issue on appeal in Deng and reversed the decision of the deputy that the claimant’s infraspinatus injury was to the body as a whole.

The Commissioner noted that he was determining whether the definition of a shoulder is limited to the glenohumeral joint or whether it extends beyond it. The Commissioner relied on an earlier version of the legislative bill that added “shoulder joint” to the arm as a scheduled member. However, the bill was then amended to have a “shoulder” be its own scheduled member. It was no longer listed as “shoulder joint” but instead, simply “shoulder”. As a result, the Commissioner interpreted this to mean that the legislature intended section 85.34(2)(n) to encompass more than just the glenohumeral joint.

Addressing the deputy level findings otherwise, the Commissioner distinguished shoulders from the general rule that when injuries are on the proximal side of a joint, you go with the next higher proximal scheduled member or the body as a whole. For example, a wrist injury is proximal to the hand so it is an arm injury, previously a shoulder was proximal to the arm so it was a body as a whole.

The Commissioner distinguishes a shoulder injury from the “proximal to” rule because it is specifically listed as its own scheduled member in the statute; a wrist is not listed as a scheduled member, a hip is not listed as a scheduled member. So, the proximal rule exists when trying to determine if scheduled member or body as a whole applies, but the rule does not apply to the shoulder because it is its own statutorily defined scheduled member.

The Commissioner then held that under this reading of the statute, the term “shoulder” includes the infraspinatus. He added that it is difficult to separate the infraspinatus from the glenohumeral joint when the muscle’s primary purpose is to stabilize the socket of the shoulder. Functionality of the shoulder is dependent on these surrounding parts. So it appears the Commissioner is extending the definition of a shoulder to all surrounding muscles and ligaments.

Based on our interpretation, the Commissioner made it clear that all muscles that make up the rotator cuff are included in the definition of a shoulder.

 In summary, the Commissioner’s decision in Deng has applied a welcome and more expansive definition of a “shoulder” and reversed recent deputy-level interpretations which were more limiting.  Of note, the decision in Deng will almost certainly be appealed by the claimant, which means this law may remain “unsettled” for the foreseeable future. If you have questions on how Deng might impact your case or have any other questions, please contact Paul Barta or Tom Shires at 402-475-1075, for more information.