McKellar v. Northrop Grumman Shipbuilding, Inc.
290 Va. 349
| Va. | 2015Background
- Preston McKellar, a long‑time Northrop Grumman structural welder, notified his employer he would retire effective May 1, 2010; he slipped and was injured at work on April 15, 2010.
- After the accident he received medical care, was placed on restricted duty in April, retired May 1, and was later found by an orthopedic surgeon to be totally disabled and on "no‑work status."
- McKellar filed for workers' compensation seeking medical benefits and temporary total disability (TTD) benefits under Va. Code § 65.2‑500; a deputy commissioner awarded both.
- The full Workers' Compensation Commission affirmed medical benefits but denied TTD benefits, reasoning McKellar’s retirement (not the injury) caused his wage loss and awarding TTD would give him retirement income unavailable to other retirees.
- The Court of Appeals affirmed the denial, finding the record showed McKellar intended to retire and did not seek post‑retirement employment; McKellar appealed to the Supreme Court of Virginia.
- The Supreme Court reversed, holding that for total incapacity § 65.2‑500 uses a loss‑of‑earning‑capacity standard and retirement does not bar TTD where the work injury caused total incapacity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether retirement precludes TTD under Code § 65.2‑500 when employee is totally disabled | McKellar: Retirement does not bar TTD; he proved total incapacity and loss of earning capacity due to the work injury | Northrop Grumman: Retirement, not injury, caused wage loss; economic‑loss analysis should deny TTD | Reversed: For total incapacity § 65.2‑500 focuses on loss of earning capacity; retirement does not preclude TTD when injury causes total incapacity |
| Proper legal standard for total vs. partial incapacity | McKellar: Total incapacity should be evaluated by loss of earning capacity standard | Employer: Applied economic‑loss standard (partial incapacity approach) to deny benefits | Court: § 65.2‑500 (total) uses loss‑of‑earning‑capacity; § 65.2‑502 (partial) uses economic loss; lower courts erred in conflating them |
| Burden of proof after showing total incapacity | McKellar: Once total incapacity is proved, no obligation to seek other work; employer must rebut totality | Employer: Pointed to evidence of intent to retire and lack of post‑retirement job search | Held: Once claimant proves total incapacity, burden shifts; claimant need not prove intent to reenter labor market |
| Whether awarding TTD would unjustly enrich claimant relative to other retirees | Employer: Award would create a windfall compared to similarly situated retirees | McKellar: Not similarly situated—injury removed his ability to work | Held: Not similarly situated; totally disabled retiree differs from retirees able to work; not a windfall when injury eliminates earning capacity |
Key Cases Cited
- J.A. Foust Coal Co. v. Messer, 80 S.E.2d 533 (Va. 1954) (total disability compensation covers losses from impairment of earning capacity)
- VEPCO v. Kremposky, 315 S.E.2d 231 (Va. 1984) (standard of review: Commission findings of fact are binding unless unsupported)
- Arlington Cty. Fire Dep't v. Stebbins, 466 S.E.2d 124 (Va. Ct. App. 1996) (clarifies that lack of earnings in statutory look‑back can yield a zero award; not a broad bar to compensation)
- Utility Trailer Mfg. Co. v. Testerman, 711 S.E.2d 232 (Va. Ct. App. 2011) (limited to partial‑incapacity furlough cases requiring causal link between wage loss and injury)
- Bay Concrete Constr. Co. v. Davis, 600 S.E.2d 144 (Va. Ct. App. 2004) (under § 65.2‑500 proof of pre‑injury average weekly wage and total disability suffices for TTD entitlement)