Law Changes After July 2017 To Permanent Shoulder Injuries

New laws effective July 1, 2017, dramatically affect how permanent shoulder injuries are to be compensated. Permanent shoulder injuries before this date were compensated on the basis of loss of earning capacity/loss of access to the labor market. The new laws attempt to make permanent shoulder injuries compensated on a schedule of 400 weeks. I say “attempted” because the law is very poorly written and subject to a wide range of interpretation. It will be up to our courts to eventually decide what the new shoulder law means, and it will likely take several years for the courts to make this determination.

The defense industry is saying an injury to the shoulder resulting in permanent injury is to be compensated on the basis of a scheduled injury of 400 weeks. That means the basis of compensation is a doctor’s rating. So, if a doctor rates a permanent shoulder injury at 10%, the result is 10% of 400, or 40, weeks of weekly compensation. It does not matter if the injury prevents the injured worker from returning to their job. The doctor’s rating is the only criteria for compensation. Under the old law, a permanent shoulder injury was considered an injury to the body as a whole and, while the doctor’s rating was a factor to consider in compensation, there were other factors such as whether the injured worker could return to the job, permanent restrictions, access to the labor market, and many others. In addition, the claims before July 2017 were based upon a percentage of 500 weeks, or even lifetime payments for total disability. These new laws are designed to benefit insurance companies and employers.

All is not lost in seeking fair compensation for a permanent shoulder injury. The new laws do not define a shoulder. So, even though a doctor may refer to the injury as a “shoulder” injury, there may be a credible argument the injury is to the body as a whole. In doing so, if an injury merits compensation for a permanent injury beyond a doctor’s rating, there is a realistic argument for greater benefits. This will no doubt necessitate the services of a workers’ compensation attorney who is a specialist. Wertz & Dake are specialists who are on the frontline fighting these issues.

Law For Shoulder Injuries Prior to July 2017

Work-related injuries to the shoulder which result in some level of permanent disability are compensated on the basis of industrial disability. This calculation takes into account your loss of earning capacity. Rather than compensation for actual loss of earnings, this is a percentage of your capacity to earn. This calculation is based on a percentage of 500 weeks of benefits. However, if you're totally disabled, you are eligible for lifetime benefits.

If, for example, a shoulder injury at work required surgery and a doctor provided a permanency rating of ten percent, many insurance companies would compensate you for 50 weeks of benefits. This determination is calculated from the doctor's ten percent rating as it applies to 500 weeks, or 50 weeks.

However, this is not the actual basis of compensation which should be calculated to compensate you. Using an industrial disability approach, a meaningful assessment of your disability can result in shoulder injury compensation far beyond a rating from a doctor, as this rating is only one small factor used in calculating industrial disability.

While there are many factors involved in shoulder injuries, the most important is whether you can return to your regular employment. In addition, it's important to determine what permanent restrictions and limitations are assigned to you on the basis of your injury.

Restrictions and limitations provide a valuable guideline for what jobs you may be able to perform after a work-relate shoulder injury. Despite a low rating from a doctor of permanent impairment, you might have suffered industrial disability/loss of earning capacity at levels far beyond the doctor's rating. This level of disability--from the industrial disability assessment--determines how many weeks you should be paid due to a permanent injury.

Get the Facts for Your Work-Related Shoulder Injury

It is very unfortunate these new laws were passed. However, if you have a permanent work injury involving a “shoulder,” you should not hesitate to contact the attorneys at Wertz & Dake to assist you with determining if you have been fairly compensated. Consultations are free.

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