Credits for Loss of Use of the Arm in Illinois after Will County Forest Preserve

Will County Forest Preserve.” The very mention of this case 
 – in which the Illinois Supreme Court held that the shoulder was  to be classified as loss of the person as a whole – is enough to get a reaction from just about any Illinois WC defense attorney given that it had a significant impact on the ability of Illinois employers to claim a credit for prior injuries.

Section 8(e)(17) of the Illinois Workers’ Compensation Act provides that where a prior permanency award has been made based on a specific loss of the hand, arm,thumb, fingers, leg, foot, or toes, such loss can be deducted from any award for a subsequent injury to the same body part. For example, if an employee is awarded 15% loss of use of the right foot for a 2015 claim, the employer can assert a credit of 15% loss of use of the right foot against any subsequent potential award or settlement for an injury to the right foot. The credit is due whether the prior compensation was paid pursuant to an award by the Commission or pursuant to a settlement contract.   

Sounds straightforward enough…but, what happens where there is a prior award for loss of use of the arm for a shoulder injury made before the Will County Forest Preserve case was decided in February 2012? Can the employer assert a credit for a subsequent injury to the same arm?

The Appellate Court weighed in on this issue in the case of Dorsey v. IWCC (2016 IL App. (1st) 143044WC). In Dorsey, the claimant had a prior injury to the left shoulder and had received compensation in 1998 pursuant to a settlement contract for 30% loss of use of the left arm. The Commission credited this amount against the subsequent award for the partial loss of use of the same arm.  The Appellate Court held that the Commission properly concluded that the employer was entitled to a credit for the prior compensation, and that it did not matter that the prior injury to the shoulder would be considered loss of the person as a whole after the Will County Forest Preserve case.The takeaway for employers is that for a prior shoulder injury that resulted in an award or settlement for loss of use of the arm prior to Will County Forest Preserve, a credit can be asserted in subsequent awards or settlement for the same arm. It is important to note that there is no requirement that the claimant disclose prior settlements, so we will always do a diligent search for prior awards to ensure that our clients are able to assert any credits to which they may be entitled. 

Thanks to Allison Mecher of I&F’s Chicago office for the summary of this key practice point.

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