Voluntary Retirement as a Basis to End Time Loss in Washington
Under Washington law, after a worker removes themselves from the labor market by voluntarily retiring, time-loss benefits are not payable. WAC 296-14-100.
However, even in claims where the individual is of retirement age and indicates no intention of re-joining the workforce, it can be difficult to establish voluntary retirement as a basis to end time loss. Even when an individual officially “retires” from their position, such as with public sector employees who are eligible for retirement benefits, this does not automatically lead to them being found voluntarily retired from an L&I perspective. For purposes of time loss entitlement, a worker is not considered voluntarily retired if they receive income, salary or wages from any gainful employment. Moreover, the following conditions must be met 1) there can no evidence of a “bona fide” attempt to return to work after retirement; and 2) the injury or occupational disease cannot be a proximate cause of the worker’s decision to retire.
While voluntary retirement can be difficult to prove, a recent decision by the Board of Industrial Insurance Appeals serves as a reminder not to overlook this basis to end time loss when the appropriate circumstances exist. See In re: Melissa C. Irish, Dckt. Nos. 23 20722, 23 23821 (May 23, 2025).
The claimant, Melissa Irish, had an accepted claim for a 2015 industrial injury. Her injury occurred when she tripped and fell while working for the Redmond Fire Department, a self-insured employer. In 2018, Ms. Irish retired from the fire department. In March 2021, she had a claim-related rotator cuff repair. Before the Board, she sought time loss compensation benefits for a two-and-a-half-year period from March 24, 2021 through November 2, 2023.
The Industrial Appeals Judge found that Ms. Irish was not entitled to time loss for this period, because she had voluntarily retired and was no longer attached to the workforce. The claimant filed a Petition for Review. The full Board granted review and affirmed the IAJ’s decision that Ms. Irish was voluntarily retired and ineligible for time-loss compensation. The Board indicated it granted review solely to make it clear that Ms. Irish remained voluntarily retired through the date of the Order closing the claim.
The IAJ’s Proposed Decision and Order, which the full Board endorsed and made the final decision of the Board, provides some insight into the facts needed to establish the conditions of voluntary retirement are met. In Ms. Irish’s case, one of the issues the judge had to consider was whether there was sufficient evidence that Ms. Irish was in fact retired from the workforce. As noted above, for a worker to be voluntarily retired, they cannot be engaging in any “gainful” employment. In addition, they cannot have made any “bona fide” attempt to return to the workforce after retirement. Ms. Irish testified that after her retirement, she actively maintained rental properties and did some sporadic consulting work. She admitted she did not work full time or apply for any jobs.
The IAJ found Ms. Irish did not prove she was gainfully employed after retirement, or that she had made any bona fide attempt to return to work. The IAJ noted that Ms. Irish collected a pension from the fire department and estimated that she worked about 420 hours a year on her rental properties, or only about eight hours a week. The IAJ reasoned that “attending to income-producing investments is entirely consistent with being voluntarily retired and separated from the workforce.” The IAJ also cited a previous Board decision, In re Earl Heyrend (February 24, 1993), in which the Board found that a worker who retired, but occasionally took jobs to supplement retirement income, wasn’t eligible for time loss.
The second question the judge had to consider was, even if Ms. Irish was in fact retired from the workforce, if the industrial injury was a proximate cause of her retirement. The IAJ concluded it was not. First, the IAJ noted that Ms. Irish had not presented any expert testimony that her injury was a proximate cause of her retirement from employment. The IAJ noted that the Board had previously declined to consider whether a person was voluntarily retired without such expert testimony. The IAJ stopped short of stating that expert testimony is always required to establish proximate cause of voluntarily retirement. However, the lack of an expert opinion attributing claimant’s retirement to her injury seems to have weighed strongly against the claimant in this case.
The IAJ also noted that even disregarding the absence of expert testimony, the record did not establish that claimant’s injury was the proximate cause of her retirement. The IAJ noted that when asked directly if her physical condition from her injury was a factor in her decision to retire, claimant equivocated, stating “[y]es, minorly. Somewhat.” In her testimony, the claimant identified non-injury related factors for her decision to retire, including interpersonal issues at work. She even stated at one point she thought she could still do the job, although she later said she was not sure she could complete the required training because of her shoulder. While the IAJ did not find claimant’s work on her rental properties constituted gainful employment, he noted that her testimony about performing construction work on her rental properties undermined her argument that the injury was a proximate cause of her retirement.
The Board’s decision in the Melissa Irish case shows that an employer can successfully defend time loss denial based on voluntary retirement under the right circumstances. A key factor in this case was that there was no expert testimony or medical evidence to attribute the claimant’s retirement to her injury. The IAJ was also influenced by evidence that the worker was very physically active after retiring, even doing construction work on her rental properties, which showed she did not retire for physical reasons. Further, while the Board considered the worker’s post-retirement activities relevant to the analysis, the decision makes it clear that engaging income-generating activity is not inconsistent with retirement. However, there must be evidence that the individual is not spending extensive time doing these activities on a regular, ongoing basis.
It remains difficult to meet all the conditions required to establish voluntary retirement under Washington law. However, the Board’s decision is a good reminder to consider whether this analysis applies whenever you have a claimant who appears to have left the workforce for reasons unrelated to their industrial conditions.
If you have questions about a claim and whether voluntary retirement may support termination of time loss benefits, SBH Legal can help. Please contact me at or call 503-225-5858 to reach another one of our experienced Washington attorneys.
Posted by Kara Cogswell Kidder.
