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Legal Update by Attorneys Alison Stewart, Nick Cooling, and Law Clerk Jordan Gehlhaar
In Deng v. Farmland Foods, it was determined that “shoulder” under § 85.34(2)(n) is not limited to the glenohumeral joint, and at least includes the muscles that make up the rotator cuff. Ourbriefing of Deng suggested there would be increased litigation surrounding this issue to further define what constitutes the shoulder. One of the first appeal decisions following the shoulder expansion came inRosa Chavez v. MS Technology, LLC.
Claimant Chavez sustained tears of several rotator cuff muscles (supraspinatus, infraspinatus, and subscapularis), as well as tears to her biceps tendon and labrum. She had a surgical repair of the rotator cuff including extensive debridement, tenotomy, and decompression. Claimant argued her biceps injury should be compensated as an arm injury under § 85.34(2)(m), rather than a whole body injury under § 85.34(2)(v).
Claimant’s expert, Sunil Bansal, M.D., opined the rotator cuff tendons were proximal to the glenohumeral joint, and did not address the labrum. The Commissioner found the rotator cuff and the labrum are both close in proximity to the glenohumeral joint and crucial to its proper functioning. Therefore, a labral tear should be compensated as a shoulder under section 85.34(n).
The claimant also argued the subacromial decompression should be compensated as an unscheduled injury because it involved “changes to the body as a whole.” Based on the record’s description of the procedure, and common definitions of acromion, the Commissioner also found the acromion to be closely connected with the glenohumeral joint in location and function – it forms part of the socket and protects the glenoid cavity.
Alternatively, claimant argued her biceps injury was an injury to the arm, and the combination of an arm and shoulder injury should allow compensation under the “catch all” provision of 85.34(2)(v). The Commissioner declined to address this argument, finding claimant failed to prove an injury to the arm since the impairment ratings were based solely on range of motion deficits in the shoulder.
All permanent disability was found compensable as a shoulder under § 85.34(n). Dr. Bansal’s impairment rating was found to be more convincing and accurate than Dr. Peterson’s rating. Claimant Chavez was compensated PPD benefits according to the ten percent upper extremity rating based on 400 weeks.
Peddicord Wharton will continue to monitor case law on this issue.
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