Gerald G. Lutkenhaus Workers Compensation Law Blog on Lawyers.com

Early Retirement can forfeit Virginia Workers' Compensation benefits.

Tuesday, February 22, 2011 by Gerald G. Lutkenhaus

I have been involved in some cases lately that involve early retirement and Virginia workers' compensation benefits.

This can come about when the employee who is out of work due to a workers’ compensation injury is offered early retirement. The employee may take this offer without considering the effect this will have on his/her workers’ compensation benefits.

If the employee has been or will be released to light duty work, then the employee could claim the employee had engaged in a "constructive refusal" of light duty work by taking the early retirement. This is so because all the employer has to say is but for the early retirement the employer would have offered the employee a light duty job. The Virginia Workers’ Compensation Commission and the Virginia Court of Appeals has recognized the "constructive refusal" doctrine. So, even though no light duty job was actually offered, the early retirement by the employee can be considered a refusal (of light duty work that would have been offered). This is so provided the employer or his representative is provided to state under oath that a light duty job would have offered.

If light duty work is refused, then the employer or its insurance company can cut off workers' compennsation benefits.

How does an employee beat the constructive refusal charge? This can be hard to do if the employee had taken the early retirement and then is released for light duty work. The best thing to do is for the employee to consult with a well-qualified Virginia Workers’ Compensation attorney before taking the early retirement. After taking the retirement, it may be too late to consult an attorney.

Jerry Lutkenhaus has been a practitioner of Social Security Disability law in the Richmond, VA for over 35 years. He was given an "AV" rating by Martindale-Hubbell in 2003. Richmond Magazine has listed Mr. Lutkenhaus as one of the best lawyers in central Virginia. There is more information at or www.geraldlutkenhaus.com. In 2010 he was given AVVO's highest rating of "superb" in their system. http://www.avvo.com/ attorneys/23230-va-gerald-lutkenhaus-1814627.html

www.virginiadisabilitylawyer.com

Posted at 14:43 PM

Topic: Workers Compensation