The U.S. Fourth Circuit Court of Appeal has overturned the Benefits Review Board and held that a claimant who voluntarily retires before a workplace injury becomes debilitating may collect disability benefits.
The Fourth Circuit reversed the Board's decision in Moody v. Huntington Ingalls, Inc., BRB No. 15-0314, 50 BRBS 9 (3/10/16), reported on here. The claimant, Moody, worked for the employer for 45 years. He injured his back in 2001, and, after considerable treatment, he returned to work for the employer in 2011. After he advised the employer he intended to retire, the claimant injured his shoulder, but continued working until the date of his voluntary retirement. The claimant had surgery for his shoulder after he retired, and he alleged he was entitled to temporary total disability benefits while he recuperated. The Administrative Law Judge agreed, finding that the claimant’s retirement prior to the time of his surgery was irrelevant. However, the Board reversed this finding.
In reversing the Board, the Fourth Circuit explained that the issue before it was whether the claimant could be "disabled" after he voluntarily retired. The court began its analysis with the pertinent statutory provision, noting that under Section 902(10), "'[d]isability' means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." The Fourth Circuit stated that "disability" equates to an "inability" to earn wages. The court believed that the claimant was unable to earn wages during his two-month recuperation period, thereby entitling him to benefits for this period. As the court stated, "[r]etirement, quite simply, is not inherently debilitating. By focusing on the voluntary nature of Moody's retirement, both the Board and Huntington Ingalls confuse being unwilling with being unable."
The Fourth Circuit recognized the employer's argument that prior case law characterizes disability as an "economic harm." However, the court reasoned that those cases define economic harm as the "lost capacity to earn wage, not actual economic loss." Therefore, the court said, "[r]ather than compensating Moody for a torn rotator cuff, the LHWCA mandates compensation for the lost earning capacity—an economic injury—that he suffers as a result of the torn rotator cuff." The court further observed that to "decide otherwise would not only deprive Moody of his rightful benefits but would also confer a windfall on Huntington: it is undisputed that Moody would have received disability benefits had he undergone surgery immediately, rather than discharging his duties in good faith, and Huntington would have had to pay for another driver."
The court further stated that the "fact that Moody did not actually work or seek job opportunities after retirement does not change the analysis. That fact goes to actual economic loss but not incapacity. Because the LHWCA compensates workers for their inability to earn wages due to injury, workers are entitled to disability benefits when an injury is sufficient to preclude the possibility of working. Here, Moody could have changed his mind and chosen to work even after retiring, perhaps in a job that offered better hours. ... His shoulder injury and the resulting surgery took that choice away from him for at least two months. The law compensates that deprivation of economic choice when it is caused by workplace injury."
"In sum," said the court, "voluntary retirement is not a form of total incapacity. As the Board has determined in the past, retirement status, standing alone, is irrelevant to earning capacity and the determination of 'disability' under 33 U.S.C. § 902(10)."
Moody v. Huntington Ingalls, Inc., No. 16-1773 (U.S. 4th Cir. 1/3/18).
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)
An employee who voluntarily retires before his injury prevents him from working does not have a compensable disability, the Benefits Review Board recently confirmed. The Board had already held in Harmon v. Sea-Land Service, Inc., 31 BRBS 45 (1997), that a claimant who becomes unable to perform his usual job prior to a voluntary retirement remains disabled following his retirement. Also, in Hoffman v. Newport News Shipbuilding & Dry Dock Co., 35 BRBS 148 (2001), the Board found that a claimant whose scheduled injury worsened after a voluntary retirement was not totally and permanently disabled, although the claimant may be entitled to increased benefits under the schedule. The Board reasoned in Hoffman, that the loss of wage earning capacity was due to the retirement and not the injury. Considering these cases together, the Board held that “in a traumatic injury claim for post-retirement disability compensation, the only relevant inquiry is whether claimant’s work injury precluded his return to his usual work at the time of his retirement such that the loss of earning capacity was ‘because of injury.’”
In this case, the claimant worked for the employer for 45 years. He injured his back in 2001 while working as welder. After considerable treatment, he returned to work for the employer in 2011 as a driver. After he advised the employer he intended to retire, the Claimant injured his shoulder, but continued working until the date of his voluntary retirement. The Claimant had surgery for his shoulder after he retired, and he alleged he was entitled to temporary total disability benefits while he recuperated. The Administrative Law Judge agreed, findng that the claimant’s retirement prior to the time of his surgery was irrelevant. The ALJ believed that the claimant need show only that his physical disability was due to the work injury and need not also establish a loss of wage-earning capacity due to the injury.
However, the ALJ found that the claimant had not retired because of his injury. Because of this finding, the Board reversed the ALJ’s award of benefits. As the Board stated, the “reason for claimant’s retirement is central to this case because resolution of that issue determines whether claimant’s disability is ‘because of injury’ pursuant to Section 2(10).” Of course, under Section 2(10), “’Disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment….” Therefore, as the Board reminded, the “disability inquiry encompasses both physical and economic considerations.” Continuing, the Board held that “claimant continued working in a suitable position until he voluntarily retired. Accordingly, as claimant did not establish that either his work-related back or shoulder injury prevented him from working as a driver at the time of his retirement on October 31, 2011, claimant did not establish that he lost any wage-earning capacity ‘because of” his work injuries. Claimant’s retirement had already resulted in his complete loss of earning capacity at the time of his shoulder surgery.”
Moody v. Huntington Ingalls, Inc., BRB No. 15-0314 (3/10/16).
© 2018 Ira J. Rosenzweig