A. Except as otherwise provided in § 65.2-503 or 65.2-510, or as provided in subsections B, C and D, when the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such incapacity a weekly compensation equal to 66 2/3 percent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than 100 percent of the average weekly wage of the Commonwealth as defined in § 65.2-500. For purposes of calculating an injured employee's post-injury average weekly wage, the following rules shall apply to commissioned employees, self-employed income, and income derived from an employer in which the injured worker or their immediate family has an ownership interest: if the period of partial incapacity exists for 13 weeks or less, the injured employee's post-injury average weekly wage shall be computed by dividing the employee's total earnings during the first two weeks of partial incapacity by two, subject to retroactive adjustments as provided hereinafter. If the period of partial incapacity exists for more than 13 weeks, the injured employee's post-injury average weekly wage for each 13-week interval shall be computed by dividing the employee's total earnings during the period of partial incapacity by the number of weeks included in such period; however, if an injured employee's period of partial incapacity ends after the close of a 13-week interval but before the close of the next 13-week interval, the injured employee's post-injury average weekly wage for such portion of the subsequent 13-week interval shall be calculated by dividing the employee's total earnings during the period of partial incapacity by the number of weeks included in such period. When an injured employee is under a continuing award of temporary partial benefits, the employer or the employee shall be entitled to seek a retroactive adjustment of the temporary partial rate for the 90 days preceding the application seeking such adjustment of the temporary partial rate computed in accordance with the above method of calculation. Any resulting amount due to the employee shall be paid to the employee. Any resulting credit due to the employer may be offset dollar for dollar against future compensation benefits due the injured employee, subject to the provisions of § 65.2-520. The employee is required pursuant to § 65.2-712 to immediately disclose increases in his earnings. For all other employments, the employee's post-injury average weekly wage may, in the Commission's discretion, be calculated using the preceding formula or a week-to-week calculation. In case the partial incapacity begins after a period of total incapacity, the latter period shall be deducted from the maximum period herein allowed for partial incapacity. However, the employer shall not be required to pay, or cause to be paid, compensation under this section to any injured employee not eligible for lawful employment; nor shall any such injured employee not eligible for lawful employment who is partially incapacitated be entitled during partial incapacity to receive temporary total benefits under § 65.2-500.
B. AmeriCorps members as defined in subdivision r of § 65.2-101 shall not be eligible to receive weekly compensation for partial incapacity, whether permanent or temporary, regardless of whether the injury results in death.
C. Food Stamp recipients participating in the work experience component of the Food Stamp Employment and Training Program as defined in subdivision s of § 65.2-101 shall not be eligible to receive weekly compensation for partial incapacity, whether permanent or temporary, regardless of whether the injury results in death.
D. Temporary Assistance for Needy Families recipients participating in the work experience component of the Virginia Initiative for Education and Work as defined in subdivision t of § 65.2-101 shall not be eligible to receive weekly compensation for partial incapacity, whether permanent or temporary, regardless of whether the injury results in death.
Code 1950, § 65-52; 1952, c. 226; 1954, c. 654; 1956, c. 243; 1958, c. 568; 1960, c. 556; 1962, c. 503; 1964, c. 94; 1966, c. 64; 1968, cc. 8, 660, § 65.1-55; 1970, c. 470; 1972, c. 229; 1973, c. 542; 1974, c. 560; 1975, c. 447; 1990, c. 559; 1991, c. 355; 1995, c. 319; 1997, c. 511; 2000, c. 1018; 2004, c. 888; 2005, c. 472; 2006, c. 660; 2019, c. 210.
Notes of Decisions
King William Cnty. & Virginia Ass'n of Counties Grp. v. Linda Jones, 789 S.E.2d 133 (Va. Ct. App. 2016).
· cites it 99× “As stated by the Supreme Court in McKellar, “an injured worker’s status in the labor market is irrelevant where the worker’s incapacity is total . . . [, and thus,] the loss of earning capacity test is the proper standard for awarding compensation in cases of total incapacity…”
Util. Trailer Mfg. Co. v. Testerman, 711 S.E.2d 232 (Va. Ct. App. 2011).
· cites it 48× “We do not assert that a partially incapacitated employee must prove an actual loss of wages during a period of furlough.”
McKellar v. Northrop Grumman Shipbuilding, Inc., 777 S.E.2d 857 (Va. 2015).
· cites it 26× “Consequently, Code § 65.2-502 presumes that where an injured worker is only partially disabled, that employee can continue working either on restricted duty or in an altogether new job.”
Greif Companies/Genesco, Inc. v. Hensley, 471 S.E.2d 803 (Va. Ct. App. 1996).
· cites it 16× “Either CTS alone, causing only partial incapacity, might provide the basis for an award under Code § 65.2-502. Code § 65.2-506 provides, in pertinent part: If an employee receives an injury for which compensation is payable while he is still receiving or entitled to compensation…”
Artis v. Ottenberg's Bakers, Inc., 608 S.E.2d 512 (Va. Ct. App. 2005).
· cites it 2× “2-500 or temporary partial incapacity under § 65.2-502, and (iii) the employee is medically released to perform selective employment, compensation benefits for wage loss shall be suspended under § 65.”
Dowden v. Hercules, Inc., 655 S.E.2d 755 (Va. Ct. App. 2008).
· cites it 10× “” Code § 65.2-502 (emphasis added); see Newsome, 30 Va.”
NiSource, Inc. v. Thomas, 674 S.E.2d 581 (Va. Ct. App. 2009).
· cites it 6× “2-502 provides that the compensation to be paid by an employer to an injured employee during the employee’s partial incapacity for work is “66% percent of the difference between [the employee’s] average weekly wages before the injury and the average weekly wages which [the…”
E.I. Du Pont De Nemours & Co. v. Eggleston, 563 S.E.2d 685 (Va. 2002).
· cites it 3× “2-503) and partial incapacity (Code § 65.2-502) and provides that such single payment must be credited as two weeks compensation for purposes of the 500-week compensation limitation.”
Ford Motor Co. v. Favinger, 654 S.E.2d 575 (Va. 2008).
· cites it 2× “2-502(A), an employer is required to pay to an employee with partial incapacity for work resulting from an injury "a weekly compensation equal to 66 2/3 percent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to…”
Dennis L. Carr v. Virginia Elec. & Power Co., 487 S.E.2d 878 (Va. Ct. App. 1997).
· cites it 6× “Additionally, claimant argues that his wage loss is properly attributable to his occupational injury, as medically imposed restrictions prevented him from performing his pre-injury job and receiving extra earnings, and it is therefore compensable under Code § 65.”
King William Cnty. & Virginia Ass'n of Counties Grp. v. Linda Jones, 779 S.E.2d 213 (Va. Ct. App. 2015).
· cites it 4× “As claimant notes on brief, adopting the stipulation that claimant was in a light-duty capacity is essentially a finding that she was partially disabled for the purposes of Code § 65.2-502. 9 . We note that the claimed wage loss is due to claimant’s partial, as opposed to total,…”
Carnie Carr, Jr. v. Atkinson/Clark/Shea, A Jt. Venture, 756 S.E.2d 191 (Va. Ct. App. 2014).
· cites it 4× “2-502(A) provides in relevant part that [W]hen the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such incapacity a weekly compensation equal to 66 2/3 percent of the…”
— Va. Code Ann. § 65.2-502(A) — 14 cases
Util. Trailer Mfg. Co. v. Testerman, 711 S.E.2d 232 (Va. Ct. App. 2011).
“We do not assert that a partially incapacitated employee must prove an actual loss of wages during a period of furlough.”
McKellar v. Northrop Grumman Shipbuilding, Inc., 777 S.E.2d 857 (Va. 2015).
“Consequently, Code § 65.2-502 presumes that where an injured worker is only partially disabled, that employee can continue working either on restricted duty or in an altogether new job.”
King William Cnty. & Virginia Ass'n of Counties Grp. v. Linda Jones, 789 S.E.2d 133 (Va. Ct. App. 2016).
“As stated by the Supreme Court in McKellar, “an injured worker’s status in the labor market is irrelevant where the worker’s incapacity is total . . . [, and thus,] the loss of earning capacity test is the proper standard for awarding compensation in cases of total incapacity…”
Ford Motor Co. v. Favinger, 654 S.E.2d 575 (Va. 2008).
“2-502(A), an employer is required to pay to an employee with partial incapacity for work resulting from an injury "a weekly compensation equal to 66 2/3 percent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to…”
Carnie Carr, Jr. v. Atkinson/Clark/Shea, A Jt. Venture, 756 S.E.2d 191 (Va. Ct. App. 2014).
“2-502(A) provides in relevant part that [W]hen the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such incapacity a weekly compensation equal to 66 2/3 percent of the…”
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