Reason for Claimant's Retirement Determines Whether an Injury is Compensable

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).