Getting Disability Benefits When You Have A Work Related Surgery

Until recently, it was universally held by the Courts that once an injured Longshoreman or Defense Base Act civilian contractor retired from the work force, any surgery he/she needed as a result of a work related injury was paid for by the Employer/Carrier, but the lost wages during the recovery period were not.   This was an unfair result:  just because one was retired, he/she should be paid for the weeks or months that he/she was disabled following surgery, however, the Courts had held that because of the retirement, the injured Claimant could not show that he/she suffered an “incapacity because of injury to earn wages.”

Fortunately, in the beginning of this year, the Fourth Circuit Court of Appeals changed decades of law by holding that the loss of “earning capacity” does not equate with the loss of actual earnings:  one can be disabled without actually suffering a wage loss.  See Russell Moody v. Huntington Ingalls, Inc.  Mr. Moody gave his mandatory 90 day notice that he would retire.   While still working, and prior to his retirement, Mr. Moody was injured on the job.  He continued working until his retirement, then scheduled surgery.  Had he scheduled his surgery prior to retirement, there would have been no question that he would be entitled to disability benefits.  Unfortunately for him, Mr. Moody’s employer tried to take advantage of his continued, loyal, forty five years of employment, and his decision to postpone surgery rather than have it while still employed.  The Court held that the fact that Mr. Moody retired and did not actually work or seek another job did not mean that he was not entitled to disability benefits because the injury was sufficient to preclude the possibility of working.  Retirement status, standing alone, is not relevant to determining earning “capacity.”

The law is ever evolving, and lawyers must continually stay on top of new decisions from the Court.  At Doolittle & Tucker, P.A., our lawyers and highly trained and Registered/Certified Paralegals attend multiple conferences and seminars throughout the country annually, where we stay abreast of current law applicable to the Florida Workers Compensation Act, Longshore and Harbor Workers Compensation Act, Defense Base Act Attorney, and the other statutory extensions of the Longshore Act.

We are a boutique law firm that focuses specifically on Defense Base Act, Longshore and Harbor Workers’ Compensation Act and Florida Workers Compensation Act claims.  That particularized focus makes us the ideal choice to assist you with your claim. We welcome you to call us today at 904.396.1734 for a free case evaluation and to learn more about how we can bring our expertise to bear in your claim.