Why are Shoulders Compensated as “Other Cases” Injuries while Hips are Not?

The human body has a head, torso, and upper and lower extremities.  The upper extremities are commonly referred to as arms, and the lower extremities as legs.  Moreover, the human body is symmetrical; not only with respect to the right and left sides, but also in regard to the upper and lower extremities.  Arms are similar to legs, hands are similar to feet, wrists are similar to ankles, elbows are similar to knees, and shoulders are similar to hips.

For the most part, the Maryland Workers’ Compensation Act (“the Act”) appears to acknowledge such symmetry.  Under L&E § 9-627(d), hands are valued at the same amount as feet, and arms the same as legs.  Likewise, L&E § 9-627(g)(1) treats wrists and ankles the same, while subsections (g)(2) and (g)(3) address elbows and knees similarly.

The only aberration to this pattern is in the context of shoulders and hips.  Both body parts connect the torso and their respective extremities.  They are as analogous to one another as elbows are to knees, wrists to ankles, etc.  Thus, the question arises, why are hips and shoulders treated differently under the Act?

Specifically, hips are treated as part of the leg for purposes of permanent partial disability (“PPD”), but shoulders are not treated as part of the arm.  The reason?  A 1974 Court of Special Appeals’ decision determined that a hip was a “scheduled” loss under what is today known as L&E § 9-627(d), whereas a 1997 Court of Appeals’ case held that a shoulder was properly compensable as a “non-scheduled” loss under L&E § 9-627(k).

PPD: Scheduled and Non-Scheduled Losses

In short, PPD awards are based on precise rates of compensation that are predetermined by law and based on the loss of use of a specific body part or the body as a whole.  The breakdown of compensation due for specific PPD awards is set forth in L&E § 9-627.  Therein, subsections (a) through (j) outline the compensation rates for various “scheduled member” losses.  Scheduled members include arms, legs, hands, feet, eyes, ears and fingers.

A body part not listed in subsections (a) through (j) of L&E § 9-627 is considered a non-scheduled member.  For non-scheduled members, L&E § 9-627(k) applies (also regarded as “other cases” injuries).  When subsection (k) is in play, the Workers’ Compensation Commissioner considers the evidence in a case and determines to what percent a particular injury affects the use of the Claimant’s body as a whole.

For more information on scheduled losses, click here; for more information on non-scheduled injuries, click here.

What is the Rationale for treating Hips and Shoulders Differently?

Good question.  There doesn’t seem to be much justification from the courts.   Essentially, it’s simply an “it is what it is” type-scenario.

In Smith v. Pyles, 20 Md. App. 478 (1974), the Court of Special Appeals was tasked with defining a “leg” under Maryland law.  Procedurally, the Workers’ Compensation Commission (“WCC”) awarded compensation for a hip as an “other cases” injury; however, that decision was subsequently reversed at the circuit court level on the grounds the WCC erred by failing to compensate the injury at the rate of a leg.  As such, the intermediate appellate court was charged with assessing whether the WCC was correct in awarding compensation for a non-scheduled loss, or alternatively, whether the circuit court properly reversed the decision below on the basis that an injury to the hip constitutes an injury to the leg for purposes of PPD.

In affirming the circuit court’s reversal of the WCC, the intermediate appellate court held that the injury to the hip “was to that portion of the body included within the . . .  definition of the leg.” Before arriving at its conclusion, the court referenced “[t]he generally accepted meaning of ‘leg,’” which “consists of three parts, that from the hip joint to the knee, from the knee joint to the ankle joint, and that portion below the ankle joint.”  Id. at 481 (quoting 52A C.J.S. Leg p. 754 (1968).  Additionally, the Pyles Court was persuaded by an out-of-state case, wherein the Arizona Supreme Court stated:

The human body has two arms and two legs, or four limbs. A complete arm, in common parlance, extends from where it connects with the shoulder blade to the hand; and a complete leg extends from where the ball (head) of the femur fits into the socket of the hip to the ankle or foot.

Id. at 482 (quoting La Rue v. Ashton Company, 2 Ariz. App. 101, 102 (1965); Ujevich v. Inspiration Consol. Copper Co., 44 Ariz. 16, 18 (1934)) (emphasis added).

Although Pyles was concerned solely with the definition of a leg, the above-quoted portion from the case out of Arizona  also provided a definition of an arm—“[a] complete arm, in common parlance, extends from where it connects with the shoulder blade to the hand.”

Accordingly, in light of the dicta in Pyles, it would appear that an injury to the shoulder is properly compensable as an injury to the arm.  Put differently, under the Pyles view of the body, a shoulder is to the arm what the hip is to the leg—both body parts are the joints that connect the torso to their respective extremities.

But in reality, this is not the case.  As will be discussed below, shoulders are treated as non-scheduled members under L&E § 9-627(k) rather than as part of the arm.  Despite this construction, Pyles remains good law and the hip is still viewed as part of the leg.

Maryland’s Highest Court does not view a Shoulder as part of the Arm

In Getson v. WM Bancorp, 346 Md. 48 (1997), the Maryland Court of Appeals reversed the intermediate court and affirmed the decision of the WCC, “which had correctly categorized claimant’s [shoulder] injury as an ‘other cases’ impairment.”  To arrive at this conclusion, the court read the plain-language of the statute literally, noting that “[s]ection 9-627 specifically lists loss of an arm, but it fails to mention loss of shoulder.”

What was interesting about Getson was the lack of weight given to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (hereinafter “AMA Guides”).  The employer/insurer had argued that the court should accept the AMA’s definition of “‘upper extremity, which consists of the hand, wrist, elbow, and shoulder.”  Getson, 346 Md. at 55.  In support, the employer/insurer pointed to COMAR 14.09.04, which incorporates some of the AMA Guides into Maryland law.  However, the Court of Appeals refused to adopt the AMA’s terminology for purposes of interpreting L&E § 9-627:

The Commission’s adoption of the AMA Guides as the standard for the evaluation of permanent impairment does not affect § 9-627’s classifications of permanent partial disabilities. The legislative history of the AMA Guides ‘ incorporation into Maryland law reveals that neither the General Assembly nor the Commission intended to incorporate the AMA Guides’ definitions of body parts into the workers’ compensation law of Maryland . . . .

In summary, nothing in the statutes, regulation, nor in the AMA Guides disturbs § 9-627’s division of injuries into those specifically listed and those “Other cases” addressed by § 9-627(k). Section 9-627 specifically lists loss of an arm, but it fails to mention loss of a shoulder. Incorporating portions of the AMA Guides in an administrative regulation cannot rewrite § 9-627.

Id. at 55-56, 60.

How can Pyles and Getson be Reconciled?

The primary goal of a court charged with interpreting a statute is to effectuate the intentions of the legislature.  Montgomery County v. Robinson, 435 Md. 62, 76-77 (2013) (quoting Dep’t of Health & Mental Hygiene v. Kelly, 397 Md. 399, 419 (2007)).  Courts are first required to give a statute’s text its literal and plain English meaning, and when doing so provides for but one reasonable interpretation, the inquiry necessarily reaches its end.  Id. at 77 (quoting Burnside v. Wong, 412 Md. 180, 194 (2010)).  Only where the plain English is subject to multiple readings will courts draw on secondary considerations.  Id. (quoting People’s Ins. Counsel Div. v. Allstate Ins. Co., 408 Md. 336, 352 (2009)).  Classic principles of statutory construction include considering legislative history, prior case law, common law and the statute’s underlying purpose or goals.  Id.

Another hallmark of statutory construction requires Maryland courts to “harmonize” various sections of a statutory scheme in order to avoid “illogical” results.  Id. at 77-78.  In doing so, courts remain mindful of past interpretations of a statute, even where distinguishable from the matters that are presently at issue.   Unfortunately, in the context of shoulder and hip injuries, it appears as if this objection has not been satisfied.

Although the Getson Court reviewed pertinent legislative history, in essence, its ruling came down to a plain English reading of the statute.  That is, under the express language of the Act, the court determined that “[t]he shoulder is not listed among the scheduled body parts in § 9-627. Accordingly, permanent partial disability resulting from a shoulder injury is governed by the catch-all ‘Other cases’ provision of § 9-627(k).”  Getson, 346 Md. at 54.  In contrast, the Pyles Court went far beyond consideration of the statute’s text, relying in large part on the definition of a leg as provided by a court out of Arizona.

When considered alongside one another, it becomes clear that the outcomes in Getson and Pyles cannot be reconciled.  Indeed, both cases sought to address whether a particular body part constituted a schedule loss or an “other cases” injury under L&E § 9-627.  While it is plausible to simply distinguish Getson and Pyles on the basis that the particular body parts at issue were different, such an argument should not carry the day.  Rather, the current Maryland standards for shoulder and hip injuries should be acknowledged for what they really are— statutory interpretations that produce illogical results.

In Light of Getson the Standard in Pyles Should be Revisited

As aforementioned, under classic principles of statutory construction, courts are required to give a statute’s text its literal and plain English meaning, and when doing so provides for but one reasonable interpretation, the inquiry necessarily reaches its end.  Despite also referencing legislative history, the outcome in Getson stemmed from the actual text of LE § 9-627.  On the other hand, Pyles went beyond the statute’s text, relying in large part on a judicial decision out of Arizona.

Again, pursuant to L&E § 9-627(k), if a particular body part is not listed in subsections (a) through (j), it is an “other cases” injury.  This language is clear and unambiguous.  Moreover, it is undisputed that neither a shoulder nor hip is listed in subsections (a) through (j).  Thus, under the plain language of subsection (k), hips and shoulders should both be considered non-scheduled members for purposes of PPD.  This is precisely how Maryland’s highest court interpreted the Act in Getson.

Rather than relying on the plain language of L&E § 9-627(k), the Pyles Court drew upon secondary considerations.  This was improper.  In Getson, the Court of Appeals refused to rely on the definition of an arm as provided by the AMA.  The AMA Guides appeared particularly applicable in light of COMAR 14.09.04, which incorporates portions of the Guides into Maryland law.  Nevertheless, the court decided the case pursuant to the unambiguous text of L&E § 9-627.

Surely, it would have been reasonable for the Getson Court to have relied on the AMA Guides.  Not only are they the product of an extremely reputable and qualified source, but they have been partially adopted in Maryland for purposes of PPD calculations.  Surely, the AMA Guides would present as the more appropriate source to rely on, relative to a judicial decision out of Arizona.  However, principles of statutory construction are well-entrenched under Maryland law, and when the legislative intent is clear from the text of a statute, a court’s inquiry must go no further; Getson abided by such longstanding precedent.

Getson is also more in line with the underlying purpose of the Maryland Workers’ Compensation Act than is the holding in Pyles.  Recently, the Court of Appeals reiterated:

We have stated [the Act’s] purpose as being “to protect workers and their families from hardships inflicted by work-related injuries by providing workers with compensation for loss of earning capacity resulting from accidental injury arising out of and in the course of employment,” and “to promote the general welfare of the State and to prevent the State and its taxpayers from having to care for injured workmen and their dependents, when under the law as it previously existed, such workmen could not recover damages for their injuries.” Consistent with this purpose, we have repeatedly emphasized the Act’s remedial nature and that it “should be construed as liberally in favor of the injured employees as its provisions will permit in order to effectuate its benevolent purposes.”

Robinson, 435 Md. at 82-83 (internal citations omitted) (emphasis added).

Simply put, treating shoulder and hips as “other cases” injuries rather than as a loss of a scheduled member better effectuates the remedial nature and benevolent purpose of the Act.  This is because applying L&E § 9-627(k) leads to more compensation for the injured worker.  Again, the Act is required to be construed as liberally as possible in favor of the Claimant.  In other words, if it is a reasonable interpretation of law, the Act should be read in favor of increased compensation whenever possible.

For all the above reasons, it is the suggestion of this author that the forty-plus-year-old standard in Pyles be revisited.