The Board recently reaffirmed that “an employee is not entitled to receive a total disability award after he retires for reasons unrelated to [an existing] work injury because there is no loss of wage-earning capacity due to the injury.” In reaching its decision, the Board reaffirmed its holding in Moody v. Huntington Ingalls, Inc., 50 BRBS 9 (2016), recon. denied, BRB No. 15-0314 (May 10, 2016), appeal pending, No. 16-1773 (4th Cir.). However, the Moody decision in on appeal to the United States Fourth Circuit Court of Appeals.
The Board reaffirmed Moody in Christie v. Georgia Pacifica Company, BRB No. 16-0321 (3/7/17). The Claimant in Christie injured his back on June 29, 1999, while working for the employer. He returned to work, but eventually required back surgery on January 9, 2004. The claimant returned to work after his surgery, but with various physical restrictions. When he returned to work, the claimant switched jobs from carpenter to safety inspector, to lessen the physical demands on his back. However, he learned in 2010 that his union planned to eliminate its early retirement option. Concerned that he ultimately might have to retire early because of his back condition, he exercised his early retirement option at the end of 2010. Thereafter, his back condition worsened, and, in December 2012, his physician imposed additional work restrictions. The claimant then sought compensation for permanent and total disability.
At the formal hearing, the claimant admitted that he could have continued working and intended to do so until he learned of the early retirement situation. Considering this testimony, the Board stated that “the only relevant inquiry is whether claimant’s work injury caused a loss of earning capacity two years later, when increased restrictions were imposed. As claimant had no earning capacity at that time, due to his decision to take early retirement at a time that he was not disabled within the meaning of Section 2(10) of the Act, the answer to this inquiry must be that the injury did not cause any loss of earning capacity.”
Christie v. Georgia Pacifica Company, BRB No. 16-0321 (3/7/17)
© 2018 Ira J. Rosenzweig