Retirement is something that almost everyone looks forward to. An opportunity to take up hobbies, travel, and spend more time with friends and family members after working so many years.
Unfortunately not everyone gets to retire on their own terms. Sometimes an occupational injury is career-ending.
Usually workers compensation benefits are available to compensate employees when they are unable to work after an on-the-job injury. The hope is that you – the injured employee – will be able to return to your pre-injury work after receiving a period of income replacement benefits and medical care.
But the reality is that you may never be able to return to your pre-injury job. And when that happens, you may start to consider retirement.
This article explains how retirement affects your workers comp rights in Virginia. After reading it you will know if you can retire while on workers compensation.
Keep reading to learn more. Then call me if you have any questions about your claim or are looking for a top-rated Virginia workers comp lawyer to help you negotiate a work injury settlement: 804-251-1620 or 757-810-5614.
I’ve helped hundreds of injured workers in Richmond, Virginia Beach, Fairfax, Roanoke, Newport News, and Charlottesville navigate competing retirement and disability systems to maximize the types of workers compensation benefits available. And I can help you do the same.
If you are close to retirement age at the time of your work-related injury, you may decide to retire. This is an option. But it’s one that can cost you tens of thousands of dollars in workers comp benefits.
When evaluating how retirement affects your workers comp case, your attorney must first determine whether you are voluntarily retiring or being forced into retirement by your employer.
You have voluntarily retired when you notify your employer that you are retiring on a specific date.
Forced retirement, also known as involuntarily retirement, happens when your employer terminates your position because of health problems or disability. I have seen many employers, including airlines, force employees to retire if the employee has restrictions for an extended period.
Voluntary retirement can create problems in workers compensation cases. Forced retirement will not, so long as your employer initiated it.
Whether voluntarily retirement has a negative effect on your workmans comp case depends on your specific medical restrictions.
The Supreme Court of Virginia addressed how retirement impacts workers compensation rights in McKellar v. Northrop Grumman Shipbuilding Inc., Record No. 140999 (Oct. 29, 2015).
In McKellar the Court stated that the Workers Compensation Act provides distinct and independent tests for total incapacity from work versus partial incapacity for work.
When an injured worker is totally disabled from all work by his or her treating physician, then the worker can receive temporary total disability benefits even if he or she voluntarily retired or is terminated for cause (insubordination, tardiness, and rudeness).
So long as the worker’s treating physician has taken him or her out of work, temporary total disability payments are available. Loss of earning capacity, not economic loss, is the appropriate test.
By contrast, the Court held that workers comp wage loss benefits are not available if you voluntarily retire while only partially disabled. In this situation economic loss is the appropriate test for determining entitlement to wage loss benefits. This is because a retiree who is not totally disabled has the option of re-entering the workforce at some time.
If you are receiving income replacement benefits through workers comp and are thinking of voluntarily retiring, make sure your doctor has totally disabled you from all work. Otherwise your pre-injury employer and its workers compensation insurance carrier can file to stop your wage loss benefits. And they will likely win.
Though retiring may mean you give up your right to wage loss benefits under the Workers Compensation Act, it does not mean you give up your right to lifetime medical benefits for your work-related injuries.
Even if you retire, the workers compensation insurance carrier is required to pay all medical bills related to your work injury, including mileage for driving to and from doctor’s appointments.
But remember – the insurance carrier is only responsible for this medical care if you:
Retirement – even voluntarily retirement – does not affect your right to permanent partial disability benefits under the Workers Compensation Act.
Permanent partial disability (PPD) benefits are paid if you suffer an amputation injury, scarring and disfigurement, or the loss of use of an injured body part.
Those of you who have suffered hand injuries, shoulder injuries, knee injuries, hip injuries, and even herniated disc injuries may qualify for PPD benefits.
I recommend calling an attorney to discuss your right to PPD benefits. You will need to have reached maximum medical improvement and received a permanent impairment rating to qualify for these benefits. An experienced attorney can help you choose a claimant friendly physician to give the rating.
You can receive PPD benefits if you voluntarily retire because these benefits are based on medical loss, not actual wage loss.
If you are considering retirement after a workplace injury, I recommend waiting until you have reached maximum medical improvement and undergone a functional capacity evaluation (FCE).
That way you will know what your permanent medical restrictions and your attorney can work with your authorized treating physician to determine what future medical care you may need. At this point your attorney can also determine whether you will be able to receive TTD benefits if you retire voluntarily.
This is also a good time to try to settle your workers compensation case. If you settle your case in full, then you won’t have to worry about the impact retirement will have on your workmans comp benefits.
You can then combine your settlement funds and retirement benefits to maintain your quality of life. And you won’t have to worry about the workers comp insurance carrier looking over your shoulder.
As an injured worker considering retirement, you have a lot to think about.
The employer and its workers comp carrier will continue to pay all reasonable, necessary, and related medical expenses if you retire.
They will also pay any PPD benefits you’re owed.
But you may give up the right to wage loss benefits if you retire.
Before sending the employer your retirement papers, call a workers compensation attorney to explore all options, including Social Security Disability.
If you call me – 804-251-1620 or 757-810-5614 – I’ll evaluate your case for free and explain whether you should hire a workers comp lawyer. Call now to schedule your free consultation.