Workers’ Compensation and Retirement

  • By:David Bate

In general, benefits under a Worker’s Compensation Act are based on an injured worker’s ability/inability to work. Thus, an injured worker’s decision to remove him/herself from the workforce by means of retirement raises a set of complex concerns and arguments that may impact an injured worker’s ability to claim benefits.

First, temporary total or partial disability benefits (TTD/TPD) are benefits that an injured worker may claim if he/she is off of work per the recommendations of a physician, or if he/she is on some type of temporary restrictions that prevents working a full-time schedule. These type of benefits, therefore, are contingent upon the date-of-injury employer being able to see if they can offer the injured worker employer.

However, if an injured worker has retired, then the employer may argue that they have no ability to offer the injured worker employment and, thus, are not liable for TTD/TPD. On the other hand, the injured worker may argue that even though he/she retired, that this retirement was caused by the work injury and thus, he/she would still be working had it not been for the work injury.

Both arguments, pro-employer and pro-employee, are frequently litigated in the Wisconsin courts and the interplay of worker’s compensation and retirement as it relates to temporary total or partial disability benefits continues to be examined.

The second benefit that may be affected by an injured worker’s decision to retire is a claim for loss of earning capacity (LOEC) benefits. LOEC benefits refer to an injured worker’s vocational impairment as it relates to the effects of his/her work injury. These benefits may be claimed by an employee with certain injuries that preclude his/her ability to return to the date-of-injury employer. An injured worker’s decision to retire again produces dueling arguments between employers and employees.

If an injured worker retires, the employer may argue that such a claim is barred because the employer has work available within an injured worker’s permanent physical restrictions and, therefore, no LOEC is merited. A counterargument by the employee may again be that the injured worker’s disability has caused his/her retirement.

Unfortunately there is no black and white answer when it comes to worker’s compensation and retirement as it relates to LOEC benefits. Both sides, employer and employee, frequently litigated these arguments through the administrative courts in Wisconsin with varying outcomes depending on case-specific facts.

Worker’s compensation and retirement may have an impact on the benefits that an injured worker may claim. That is why it is important to consult with an experienced worker’s comp lawyer Milwaukee WI trusts if you have sustained an injury at work and are considering retirement.


HTThanks to our friends and contributors from Hickey & Turim, S.C. for their insight into workers’ compensation and retirement.

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