758 S.E.2d 104
Va. Ct. App.2014Background
- Claimant retired from employer effective May 1, 2010 after a work injury April 15, 2010; he was on no-work status post-retirement.
- Claimant’s job as a structural welder was physically demanding; injuries included multiple joints and areas.
- Claimant temporarily returned to restricted duty before retirement; medical providers placed him on no-work status after retirement.
- Deputy Commissioner awarded medical benefits and TT disability commencing May 14, 2010; Commission reversed TT disability award.
- Commission reasoned that claimant’s wage loss would occur absent injury and retirement would preclude TT benefits.
- Court reviews commission findings for credibility and legal conclusions but does not retry facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does retirement preclude TT disability when claimant is medically unable to work? | McKellar argues no; incapacity is total and linked to injury. | Employer argues retirement caused loss of earnings, not injury. | Yes; retirement precludes TT benefits when no wage loss from injury. |
Key Cases Cited
- Arlington Cnty. Fire Dept. v. Stebbins, 21 Va.App. 570 (1996) (windfall concerns when retirement causes no earnings loss)
- Util. Trailer Mfg. Co. v. Testerman, 58 Va.App. 474 (2011) (casual relationship between wage loss and injury essential)
- Bosworth v. 7-Up Distrib. Co., 4 Va.App. 161 (1987) (calculate economic loss to approximate earnings without injury)
- Lam v. Kawneer Co., Inc., 38 Va.App. 515 (2002) (wage benefits precluded when no loss compared to non-injured workers)
- Carr v. Atkinson, 63 Va.App. 281 (2014) (factors for partial incapacity wage claims; causal relation between loss and injury)