Login Register Subscribe
Current Issue

Worker who retired soon after injury entitled to temporary total disability

Reprints

A Virginia worker who was injured just weeks before his retirement should receive temporary total disability benefits for his injuries, even though the man did not attempt to reenter the workforce after his accident, the Virginia Supreme Court has ruled.

Preston L. McKellar worked 42 years as a structural welder for Northrop Grumman Shipbuilding. He notified the company in April 2010 that he would be retiring in May of that year, court records show.

On April 15, 2010, Mr. McKellar tripped and fell while working on the construction of a submarine. Court filings show that he injured his back, hip, knees hands and wrists, and he was placed on restricted work duty for the rest of April 2010.

Mr. McKellar retired as expected on May 1, 2010, records show. Soon thereafter, he went to see an orthopedic surgeon for continued pain related to his accident, and was found by the doctor to be totally disabled. The doctor placed Mr. McKellar on “no-work status.”

Mr. McKellar went on to file a workers comp claim seeking medical benefits and temporary total disability compensation from Northrop Grumman, filings show.

A commissioner with the Virginia Worker's Compensation Commission found in 2013 that Mr. McKellar's medical evidence and testimony were sufficient to grant him medical benefits and TTD benefits. That was despite the fact that Mr. McKellar testified that he had not pursued employment since retiring from Northrop Grumman.

The company appealed the deputy commissioner's decision to the full Virginia workers comp commission, which affirmed Mr. McKellar's medical benefits but reversed his TTD benefit award, records show. The commission found that Mr. McKellar's “wage loss would have occurred regardless of his compensable injury” since he had retired. Therefore, the court said giving him TTD benefits would provide him “with an additional stream of retirement income denied to similarly situated coworkers who were not injured.”

The Virginia Court of Appeals upheld the commission's decision in 2014, finding that Mr. McKellar's “retirement, not his injury, caused his loss of compensation” since he had not sought employment after his retirement, records show. Mr. McKellar appealed to the Virginia Supreme Court.

The high court unanimously ruled Thursday that Mr. McKellar should receive TTD benefits along with medical benefits. In its ruling, the court found that injured workers are entitled to receive TTD compensation under the state workers comp law, even if they leave the workforce for reasons unrelated to their injuries, since TTD compensates workers for loss of earning power.

“A partially disabled retiree could seek other employment. A totally incapacitated retiree cannot work,” the ruling reads. “A partially disabled retiree can supplement his retirement income. McKellar cannot. The Court of Appeals wrongly concluded that an award of temporary total disability benefits to McKellar would constitute a 'windfall' that another 'similarly situated retired worker would not receive.'"

The case will be remanded to the Virginia workers comp commission to reinstate Mr. McKellar's TTD benefit award, according to the high court ruling.