Board says no additional LHWCA compensation if not disabled at retirement

by Matthew H. Ammerman on April 29th, 2017

An injured worker gets LHWCA compensation for disability. Disability is the incapacity because of injury to do his or her job at the time of injury. 33 U.S.C. Sec. 902(10). What if an injured employee working in suitable alternate employment opts for retirement and his condition worsens -- is additional LHWCA compensation due?

No, not if the worker was able to do his job or suitable alternate job at the time of voluntary retirement says the Benefits Benefits Review Board in two recent opinions.

The most recent, Christie v. Georgia Pacific Co., decided March 7, 2017, involved carpenter Stanley Christie who injured his back on June 29, 1999. He returned to work but had back surgery in 2004. In 2007 or 2008, Christie switched jobs to a safety inspector at Georgia-Pacific's Portland warehouses due to concerns about re-injuring his back.

Christie opted for early retirement in 2010 at age 56 before Georgia-Pacific's generous early-retirement package was  phased out. His back condition, however, worsened after retirement and, in December 2012, Christie's doctor imposed additional work restrictions. Christie then sought permanent, total disability compensation under the LHWCA.

The Board holds that the only relevant inquiry is whether claimant’s work injury precluded him from performing his usual work or suitable alternate employment at the time of his retirement. If not, there is no additional LHWCA compensation due. The Board relied on its holding in a similar retirement case, Moody v. Huntington Ingalls, 50 BRBS 9 (2016)(appeal pending), where the Board denied post-retirement TTD compensation for a knee injury that worsened after retirement from a light-duty job. The Moody case is on appeal to the U.S. Court of Appeals for the 4th Circuit.

Here, Christie was able to do his post-injury job as a safety inspector when he retired. He opted to retire despite that ability, and, consequently, had no earning capacity to lose post-retirement when his back got worse. That holding applies even though the trial judge found that Christie opted for early retirement in part because of fears he would not be able to continue to work due to his back problems.

Christie was not entitled to post-retirement permanent, total disability compensation. He retains his right for medical treatment related to the work injury.

Christie v. Georgia-Pacific Co., 50 BRBS 7 (March 7, 2017).

Posted in LHWCA: Disability; compensation rate    Tagged with Permanent total disability, LHWCA, voluntary retirement



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