Fingers Count as Members, Too

Friday, October 16, 2009 | 0

By Arik D. Hetue 
 
Synopsis: Do fingers and toes count as "members" under the Illinois WC Act for the purposes of application of the statutory minimum rate for amputations?
 
Editor's comment: We here at Keefe Campbell and Associates have heard through the grapevine a veteran defense firm in Illinois has advised a mutual client of ours the minimum amputation rate applies only to arms and legs. We would like to confirm for all our readers that it does apply to any scheduled amputation, not just arms and legs.
 
Let's take a look at the crux of the issue here. As any veteran Illinois claim handler knows or should know, when an injured worker suffers an amputation of a "member", according to Section 8(b) 4.1 of the Act, they are entitled to immediate compensation at a minimum rate of 50% of the statewide average weekly wage. Currently, this is $461.78.

Please be aware, this rate applies to amputations even if an injured worker earns less than this amount — if you have a part-time worker who earns only $250.00 per week as their average weekly wage, they are entitled to $461.78 for industrial amputations. 
 
We were surprised to learn this defense firm suggested to a third-party administrator the amputation rate only applies in situations where an injured worker has lost an arm or a leg, because the Illinois Workers' Compensation Act uses the words "amputation of a member...under paragraph (e) of this section" when describing when the minimum rate kicks in. This is not totally out of left field, as according to Webster's Dictionary a "member" is a body part or organ, such as a limb.
 
We must point out however, this attempt at legal contortion is abruptly cut short by further language of the Illinois act  itself. As stated above, Section 8(b)4.1 specifically states the amputation rate apples to any member under 8(e). Section 8(e) of the act is the categorical disability schedule for all body parts covered under the act. The first paragraph of that section specifically states in relevant part:
 
The following listed amounts apply to either the loss of or the permanent and complete loss of use of the member specified, such compensation for the length of time as follows:
 
Immediately following that sentence, Section 8(e) goes on to list every body part in the schedule including fingers, toes and other organs and the amount of weeks such "members" are assigned.
 
Further evidencing this interpretation is Lester v. Industrial Com'n, 256 Ill.App.3d 520, 628 N.E.2d 191 (1st Dist. 1993), a decision where the severed body parts were fingers, in which the unanimous members of the Appellate Court state in relevant part: