What happens when an employee announces his retirement but is injured shortly before his effective retirement date? Is he still entitled to wage loss benefits? The Supreme Court of Virginia recently ruled on this issue and determined that the Claimant is still entitled to temporary total wage loss benefits, but not temporary partial benefits, in such a case. In the October 29, 2015 decision (McKellar v. Northrop Grumman Shipbuilding, Inc., Record No. 140999), the Court overturned the Commission and the Court of Appeals, determining that “a retired worker whose work-related injury causes total incapacity need not produce evidence of a pre-injury intent to reenter the workforce.”
This opinion has been noted to place soon to retire workers who sustain 11th hour work injuries in a better position than similarly situated workers who are not injured. Although neither employee intended to work after retirement, the injured employee is now eligible for up to 500 weeks of wage loss benefits for wages that he would never have earned had he not been injured. While the decision upholds the plain language of the Virginia Workers’ Compensation Act, it seems possible that the legislature may explore this issue in greater depth.