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Virginia: Injury That Occurred Two Weeks After Notice of Retirement Qualifies Employee for Temporary Total Disability Benefits

November 06, 2015 (1 min read)







Where a long-time employee notified his employer that he would be retiring in one month and, two weeks prior to retirement, he tripped and fell in a work-related accident, received medical treatment in a worksite clinic and was placed on restricted duty for the remainder of the month, he was entitled to workers’ compensation benefits for temporary total incapacity in spite of the fact that he retired as he had originally planned. The Commission had allowed medical benefits, but ruled that the retired worker was not entitled to temporary total disability benefits since his wage loss would have occurred anyway. The Court of Appeals affirmed the Commission, but the Supreme Court of Virginia reversed. The Court found that the Commission and the Court of Appeals had improperly used an “economic loss” standard rather than a “loss of earning capacity” standard. Injured workers who leave the workforce for reasons unrelated to their injuries are nonetheless entitled to temporary total disability compensation. Here the retired employee was entitled to benefits under Va. Code Ann. § 65.2–500, because he was totally disabled and lacked all earning capacity. His status in the labor market was irrelevant as the worker’s incapacity was total.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to

See McKellar v. Northrop Grumman Shipbuilding, Inc., 2015 Va. LEXIS 140 (Oct. 29, 2015) [2015 Va. LEXIS 140 (Oct. 29, 2015)]

See generally Larson’s Workers’ Compensation Law, § 84.04 [84.04]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.









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