One More Thing To Consider Before Voluntary Retirement…

In this decision presented to the Benefits Review Board, Claimant appeals, and Employer and Carrier cross-appeal, the Decision and Order of Administrative Law Judge Steven B. Berlin.

Claimant originally sustained right knee injuries due to an unrelated-work injury.  Claimant began working for Employer as a marine machinist in 1998.  On September 18, 2007, Claimant sustained injuries to his right knee.  Claimant underwent surgery, which was voluntarily paid for by the Carrier at the time- American Home Assurance/ AI Surplus Insurance/ Chartis/ AIG Worldsource (Chartis).  Claimant returned to work on April 16, 2008, at which time Signal was the Longshore and Harbor Workers’ Compensation Act carrier.  Claimant began working part-time in August 2008 and continued until he retired voluntarily in April 2011.

In September 2010, Claimant filed a claim alleging residuals from a surgery caused increased pain during his work activities.  Chartis moved to add Signal to the claim asserting that Claimant’s continued work activities after April 2008 aggravated Claimant’s condition such that Signal would be the responsible carrier.

In its cross-appeal, Signal argued that Claimant’s claim was time-barred under Section 13, which applies to traumatic injury cases and provides that the right to compensation shall be barred unless the claim is filed within one year of the time the claimant is aware, or should have been aware, of the relationship between the injury and the employment.  See 33 USC 913(a).  The BRB rejected Signal’s contention and instead found the claim to be timely filed; the claim was filed within one year of a May 2010 medical opinion linking claimant’s increased knee pain to his 2007 work-related accident.  The BRB also rejected Signal’s contention that it was not the last responsible Employer.  Affirming the ALJ’s decision, the BRB agreed that Claimant presented substantial evidence that he sustained an aggravation of his right knee condition when he was working part-time, which was during Signal’s coverage period.

In his appeal, Claimant argued he was improperly denied total disability benefits when the ALJ found that since Claimant voluntarily left the workforce at a time when he was still able to work, he incurred no wage loss due to his work injury.  Relying on Hoffman v. Newport News Shipbuliding & Dry Dock Co., 35 BRBS 148 (2001), the BRB agreed: if a Claimant retires for reasons unrelated to his work-injury, he is not entitled to permanent total disability benefits.  Accordingly, Claimant was not entitled to permanent total disability benefits, even though his claim had been timely filed.

Horner v. Cascade General/Vigor Industrial, LLC, BRB Nos. 13-0555 and 13-0555A (Aug. 21, 2014).