After 42 years of employment, Preston McKellar notified Northrop Grumman, on April 1, 2010, that he would be retiring effective May 1, 2010. On April 15, 2010, McKellar was injured at work. On May 1, 2010, he retired as scheduled. Thereafter, he filed a claim against Northrop Grumman with the Virginia Workers’ Compensation Commission seeking medical benefits and temporary total disability compensation related to his April 15, 2010 accident.

After the matter proceeded through the Workers’ Compensation Commission and the Court of Appeals, the Virginia Supreme Court held that McKellar was entitled to temporary total disability compensation for the period during which he was incapacitated even though he was retired during most of the period that he was disabled. In doing so, the court noted that the proper test for awarding compensation in total disability cases is the loss of earning capacity, and that an injured worker’s retired status is irrelevant where the worker’s incapacity is total. Consequently, it was McKellar’s total disability, not his retirement, that removed him from the labor market and entitled him to receive temporary total disability benefits.