Opinion
C.A. No. 00A-04-001 JTV
Submitted: October 23, 2000
Decided: January 31, 2001
Upon Consideration of Appeal From Decision of The Industrial Accident Board. AFFIRMED.
Walt F. Schmittinger, Esq., Dover, Delaware. Attorney for Claimant Below-Appellant.
J.R. Julian, Esq., Wilmington, Delaware. Attorney for Employer Below Appellee.
ORDER
Upon consideration of the briefs of the parties and the record of the case, it appears that:
1. In this appeal from a decision of the Industrial Accident Board ("the Board"), the issue is whether a worker who is fully compensated for the entire loss of the left arm is entitled to additional compensation for a subsequent injury to the left shoulder. The Board concluded that the compensation for total loss of the arm encompassed the loss of the use of the shoulder and denied the petition for additional benefits. I find that the Board was correct in concluding that once a worker has been paid the maximum statutory benefit for the loss of an arm, he is not entitled to additional benefits for a subsequent injury to that extremity, including the shoulder. Accordingly, the Board's decision is affirmed.
2. The claimant was cleaning a machine when it started unexpectantly and crushed his left forearm. As a result, his arm was amputated three inches below the elbow. During the physical therapy and training for the use of a prosthesis in the months following the accident, he sustained a tear to the rotator cuff of the left shoulder. Although surgery was performed to repair the tear, the claimant continues to experience pain and impairment in the shoulder. The shoulder pain makes it more difficult for the claimant to open and close a pincer at the end of the prosthesis with left shoulder movement, although apparently he can also open it without pain by moving the right arm. Because of the amputation, the claimant was paid the full compensation required by statute for a 100% permanent loss of the left arm. When the new problem with the shoulder developed, he filed the present petition seeking additional compensation for permanent, partial impairment of the shoulder.
19 Del. C. § 2326(e) provides that amputation between the palmar surface of the hand and the shoulder shall be considered the loss of an arm.
4. The claimant contends that the first compensation benefit he received was for permanent loss of his left arm, not his whole upper extremity. He points to the language of 19 Del. C. § 2326(a), which specifically refers to "arm," not "up per extremity." He contends that the arm and the shoulder are two different parts, that the award for the arm did not cover the shoulder, that a torn rotator cuff is a compensable injury separate from the loss of an arm, and that he is therefore entitled to compensation for the shoulder injury as a separate body impairment. The employer contends that the claimant has already received the statutory maximum compensation for permanent impairment of the "upper extremity"; that the injury to the shoulder is not a separate injury to a different body part, and that the decision of the Board is, therefore, correct.
"For the loss of an arm, 66 2/3 percent of wages during 250 weeks";
5. On appeal from a decision of the Industrial Accident Board, this Court's limited function is to determine whether or not there is substantial evidence on the record to support the Board's findings. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. If this Court finds substantial evidence and the Board has not committed an error of law, the Board's decision must be affirmed. The Board is free to accept the testimony of one medical expert over another.
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965).
Olney v. Cooch, Del. Supr., 425 A.2d 610, 614 (1981).
Windsor v. Vell Shades and Floor Coverings, Del. Supr., 403 A.2d 1127, 1129 (1979).
Disabatino Brothers, Inc. v. Wortman, Del. Supr., 453 A.2d 102, 106 (1982).
6. The Board received testimony from three doctors. All three testified that the shoulder is part of the upper extremity. In fact, the testimony of all three took place in the context of a focus on the "upper extremity" as opposed to the "arm." Dr. Steven Rogers testified that the amputation gave the claimant a 90% permanent impairment of the upper extremity. He further testified that the rotator cuff tear gave him a 35% impairment of the shoulder, or a 15% impairment of the upper extremity in addition to the 90% caused by the amputation. Dr. Richard Dushuttle, the claimant's treating physician, testified that the amputation gave the claimant an 80% permanent impairment of the upper extremity, and the rotator cuff tear gave him an additional 15% permanent impairment of the upper extremity. Dr. David K. Saland agreed that an impairment of the shoulder should be expressed in terms of impairment to the upper extremity. When asked whether the amputation and the rotator cuff tear would constitute two separate injuries, he responded, "[w]ell, I would call it one injury involving two parts of the arm." At a later point in his testimony, when asked whether the shoulder injury had created a greater impairment than before, he responded, "[w]ell, greater if it was less than 100 percent, but in my opinion, once you've been allocated an award equal to total loss of the arm, that includes the shoulder." The Board agreed with the testimony of Dr. Saland that total loss of the use of the arm includes loss of the use of the shoulder. Since the claimant had already been compensated for a 100% loss of the arm, it reasoned, any additional compensation for injury to the shoulder would constitute double recovery.
7. It is well settled that the workers' compensation law does not permit cumulative recoveries where one injury of the type set forth in 19 Del. C. § 2326(a) is necessarily included in another type of injury included in that subsection. Thus the loss of an arm includes the loss of a hand, and the claimant cannot recover separate awards for each. By analogy, if a claimant has an amputation of a part of his arm and is compensated for total loss of the arm as required by the statute, he cannot obtain a second recovery if he later suffers amputation of an additional part of his arm, because the second amputation is necessarily included in the compensation for total loss of the arm. This concept that compensation for one injury may be included in compensation for another injury was further developed with the addition of 19 Del. C. § 2326(g), which allows compensation for types of impairments not covered in subsection (a), but not where "such loss was caused by the loss of or the loss of use of a member of the body for which compensation payments are already provided by the terms of this section." In this case, since the statute by its express terms compensates for "loss of an arm," not "upper extremity," the question is whether a shoulder injury is included in the loss of the arm. In other words, does compensation for loss of an arm include the loss of the use of a shoulder just as it includes the loss of the hand or the later loss of another part of the arm.
Nabb v. Haveg Industries, Inc., Del. Super., 265 A.2d 320 (1969), aff'd 266 A.2d 879 (1970).
Id.
8. As mentioned above, Dr. Saland testified that in his opinion the claimant's case involved injury to two parts of the arm, and that loss of the arm includes the shoulder. Both Dr.'s Saland and Dushuttle testified that, medically, as parts of the upper extremity, a combined permanent impairment of the arm and shoulder does not exceed 100 percent. There is nothing in this record which creates an inference that the shoulder has a significant function apart from movement of the arm. Based upon the record, I find that the Board was within its discretion in relying upon the testimony of Dr. Saland that the loss of the arm included the loss of the use of the shoulder. While the injury to the shoulder makes it more difficult for the claimant to maneuver the prosthesis with his left shoulder, the injury remains, nonetheless, part and parcel of the loss of the use of the arm. My conclusion is that a shoulder injury which impairs the ability to maneuver the remaining part of the arm or the prosthesis is subsumed within the loss of the arm.
Although the issue does not present itself in the following cases, it is noted they contain references to shoulder injuries being compensated as impairment to the arm, Bestemps v. Gibbs, Del. Super., C.A. No. 98A-04-003, Barron, J. (Oct. 22, 1998) (Mem. Op.); O'Donnell v. UEC Catalytic, Inc., Del. Super., C.A. No. 94A-08-17, Herlihy, J. (Nov. 7, 1995) (Mem. Op.); Resource Technology Services v. Hedden, C.A. No. 94A-04-008, Silverman, J. (Jan. 31, 1995) (ORDER).
9. The claimant cites the case of Smagala v. City of Wilmington as supporting his position, but that case involved injuries to the vocal cords and the lungs, two clearly separate body organs serving different purposes. For that reason, it is clearly distinguishable from this case.
Del. Super., C.A. No. 97A-09-006, Barron, J. (Feb. 13, 1998)(ORDER).
10. The Board's decision is supported by substantial evidence and is legally correct. Therefore, it is affirmed.
IT IS SO ORDERED.