by KPMLAW | Jan 18, 2016 | KPMBlog, News, Uncategorized, Updates
What should an employer do when an employee announces plans to retire on a definite date? Get the employee a gold watch? Plan a luncheon? Maybe the best answer, at least from a workers’ compensation perspective, is to bid him adieu, immediately. A nightmarish situation can develop if an employee announces his retirement to be effective on a definite date in the future, and then gets injured on the job. This factual scenario was recently addressed by the Supreme Court of Virginia in McKeller v. Northrop Grumman Shipbuilding, Inc. , 2015 Va. Lexis 14. In McKellar, on April 1, 2010 the Claimant advised his employer that he was retiring effective May 1, 2010. On April 15, 2010 the Claimant sustained a compensable injury by accident. The Claimant was placed on restricted duty through the end of April. He retired on May 1, 2010. However, sometime after his retirement the Claimant was found to be totally disabled. The Claimant then filed a claim with the Virginia Workers’ Compensation Commission, seeking temporary total disability benefits. The Deputy Commissioner awarded compensation and medical benefits, finding that although the Claimant was retired his total incapacity entitled him to benefits. The Full Commission, in a 2-1 decision, affirmed the award of medical benefits but reversed the award of compensation, reasoning that the wage loss would have occurred regardless of his compensable injury. The Court of Appeals affirmed the decision from the Commission, concluding that the Claimant’s retirement, not his injury, caused his loss of compensation because the record was devoid of evidence that the Claimant sought or held income-producing employment after his retirement and...
by KPMLAW | Sep 14, 2015 | KPMBlog, News, Uncategorized
Editor: Rachel Riordan, Esquire Author: Robert McAdam, Esquire The “Willful Misconduct Defense” has recently been given a boost by the Court of Appeals in Layne v Crist Elect. Contr., Inc. 64 Va. App. 342, 768 S.E.2d 261 (2015). Under familiar statutory law (Virginia Code §65.2-306(A)(5)) workers’ compensation benefits will be denied to a claimant when the claimant commits a willful breach of a workplace safety rule brought to his attention prior to the accident; even though the underlying event would otherwise be compensable. This statute was recently reinvigorated by Layne. In Layne, the claimant was an employee of an electrical contractor and a subcontractor performing electrical work in a warehouse owned by Delta Star. The claimant was installing electrical conduit from a scissor lift high up in Delta Star’s core cutting room and had almost completed installing the conduit. Delta Star’s bridge crane, which was operational at the time, hit claimant’s scissor lift, causing both the scissor lift and claimant to fall far to the floor. The claimant sustained catastrophic injuries. The Claimant’s accident arose out of and occurred in the course of the employment. However, the Employer raised a willful misconduct defense, asserting the bridge crane would not have hit the scissor lift, and the injuries would not have occurred, if the claimant had rendered the bridge crane inoperable by following the “lockout-tagout” safety procedure. This procedure ensured that the electrified rails which allowed the bridge crane to move were inoperable, ensuring that the crane could not move. At hearing, the evidence showed the claimant was never given any written materials addressing the “lockout-tagout” procedure and did not...
