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Recent Appellate Court Decisions
In Dorsey v. IWCC, 143044 WC (1st Dist. 2016), the petitioner suffered a left arm injury in 2010. The petitioner had a prior settlement in 1998 for 30% of the left arm.
The petitioner suffered a biceps tendon rupture in the left arm as a result of the February 8, 2010 left arm accident. The petitioner underwent surgery to repair the tendon rupture. The petitioner required surgical drilling into the bone near the elbow joint to attach the tendon. At the arbitration hearing the petitioner agreed that he had a prior left arm claim which was settled in 1998 for 30% of the left arm.
The arbitrator awarded 17% man as a whole for the left arm injury. The arbitrator did not allow the employer a credit for the 1998 settlement and held that credits are not available for man as a whole awards.
On review the IWCC held that elbow injuries were still part of the arm for purposes of compensation. Bicep injuries which occur at the elbow are arm injuries under Section 8(e) of the Act. The IWCC determined that the employer was entitled to a credit for the 1998 left arm settlement. The IWCC awarded 37½% of the left arm minus a credit for 30% loss of use of the same arm as a result of the prior settlement.
The Petitioner’s new accident involved a rupture of the distal biceps tendon just below the left elbow. After surgery and postoperative recovery the Petitioner was discharged from treatment and released to full employment.
The Petitioner had a previous injury to his left shoulder in 1995. This claim was settled for 30% of the left arm in 1998. Petitioner testified the 1998 settlement was to his left rotator cuff and did not involve the biceps tendon.
The IWCC held that the Petitioner’s new accident was an injury to the bicep tendon above the elbow. This new injury was an injury to the arm. The IWCC held that the arbitrator’s finding of a man as a whole injury was erroneous. The employer was therefore entitled to a credit for the settlement to the earlier injury to the left arm. Although the previous injury was to the left shoulder the settlement was paid under Section 8(e) of the Act. At the time, it included shoulder injuries in the same injury classification as arm injuries. The employer was therefore entitled to a credit for a previous Section 8(e) payment for the same arm.
In this case, the Petitioner’s recent injury was to the biceps tendon at the distal point which is the point where the bicep attaches to the bone near the elbow. The medical evidence established the Petitioner’s surgery was to the area near the elbow.
Credit for compensation for a previous award to the same member is mandatory. The credit is due whether the prior compensation was paid pursuant to an award by the Commission or pursuant to a settlement contract. The Petitioner argued that the 1995 injury was to the rotator cuff of the shoulder and therefore would be a man as a whole injury today.
The appellate court determined that after IWCC approval the terms of the settlement contract cannot be altered or changed. The Petitioner settled a claim for an injury to his left arm in 1998. Any future employer shall be given a credit for prior compensation for injury to that same body part. The fact that a Petitioner might be compensated differently today for an injury that occurred in 1995 does not change the fact that he was compensated under Section 8(e) of Act in 1998. Petitioner was compensated for a prior injury to his left arm and the IWCC properly concluded that the Respondent was entitled to a credit for that prior compensation.
Editor’s Note: Even though the prior award or settlement is to the shoulder, the employer may still be able to take a credit for a recent injury to the same arm. The employer can take a credit for the member whether the payment was by settlement or by IWCC decision. Practitioners and adjusters are aware that there is no credit for man as a whole awards, but only for prior awards to the same member.