Dem Bones

8.6.2019 Blog

“Dem Bones” (also known as “Dry Bones”) is a biblical song, inspired by Ezekiel’s visits to the Valley of Dry Bones. In Ezekiel’s vision, the dry bones are connected into human figures, and the prophet is commanded to revitalize the figures. According to the catchy tune, the hip bone is connected to the backbone, the backbone is connected to the shoulder bone, and the foot bone is connected to the toe bone. Curiously, the original song doesn’t reference the hand or finger bones, leaving workers’ compensation attorneys in complete disarray about upper extremity orthopedics.

A good chunk of Illinois Workers’ Compensation can be reduced to one glamorous little chart, which outlines the schedule of losses, or value of various body parts under Illinois law. A petitioner’s attorney may try to bolster the value of a claim by arguing that the injury falls under a more lucrative/higher-valued loss. For example, the petitioner’s attorney in Insulated Panel v. Industrial Commission, 318 Ill. App. 3d 100 (2000), was successful in arguing that an ankle injury should be compensated as a leg, due to the fact that the ankle joint, like Dem Bones states, is connected to the leg bone.

If a surgical incision is made at the location of the higher-valued body part, a petitioner’s attorney may argue for the higher scheduled loss. For example, a petitioner’s attorney may argue that a single finger injury should be compensated as a hand, due to the fact that the surgical incision may be at the palm. This argument contradicts the plain meaning of the Illinois Workers’ Compensation Act, as well as the case law on the subject.

Section 8(e)9 addresses the hand and permits the Commission to award for a partial use of the hand if there is a loss of (a) two or more digits or (b) one or more phalanges of two or more digits.

In Meade v. Industrial Commission, 48 Ill. 2d 215 (1971), Meade suffered injuries to his right index finger, middle finger and ring finger. He testified that he had pain in his elbow, that his hand was cold all the time, and that he had no ability to pick up items with his hand. The Illinois Supreme Court agreed with the Respondent that a hand award wasn’t warranted, noting that Meade’s disability (even in his hand) stemmed from the partial loss of use of his fingers. Following Meade’s logic, if a Petitioner has a finger injury and suffers a corollary loss in the hand (such as loss of grip strength), the injury should still be compensated as a finger. In Steven Decesare v. Illinois Department of Transportation (13 IWCC 299), the Commission agreed with Meade, and modified the Arbitrator’s decision for loss of use of a hand to an award for loss of use of the finger.

The purpose of our schedule of losses in Illinois is defeated if every body part could melt into another, higher-valued, body part. A carpal tunnel incision extends into the forearm, but is treated as a hand injury. The surgical incision for a foot surgery can extend into the leg, but is treated as a foot. The surgical incision for an anterior hip replacement surgery can extend into the abdomen, but is still treated as a leg.

As the Meade Court addressed, the relevant inquiry in assessing the loss is determining the location of the disability. The location of the surgical incision should be irrelevant in assessing value.

Keep in mind that for purposes of credits and potential future injuries, it may be advantageous for a client to settle a claim under the higher-valued body part. Assessing the value of a claim can involve much more strategy than following the lyrics of Dem Bones.

If you have any questions about the Illinois schedule of losses, credits, or the value of a claim, please contact me.

The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information. Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law.