65.2-502 - Compensation for partial incapacity; exclusion of AmeriCorps members, certain Food Stamp Employment and Training Program participants, and certain Temporary Assistance for Needy Families pa
§ 65.2-502. Compensation for partial incapacity; exclusion of AmeriCorpsmembers, certain Food Stamp Employment and Training Program participants, andcertain Temporary Assistance for Needy Families participants.
A. Except as otherwise provided in § 65.2-503 or 65.2-510, or as provided insubsections B, C and D, when the incapacity for work resulting from theinjury is partial, the employer shall pay, or cause to be paid, ashereinafter provided, to the injured employee during such incapacity a weeklycompensation equal to 66 2/3 percent of the difference between his averageweekly wages before the injury and the average weekly wages which he is ableto earn thereafter, but not more than 100 percent of the average weekly wageof the Commonwealth as defined in § 65.2-500. For purposes of calculating aninjured employee's post-injury average weekly wage, the following rules shallapply to commissioned employees, self-employed income, and income derivedfrom an employer in which the injured worker or their immediate family has anownership interest: if the period of partial incapacity exists for 13 weeksor less, the injured employee's post-injury average weekly wage shall becomputed by dividing the employee's total earnings during the first two weeksof partial incapacity by two, subject to retroactive adjustments as providedhereinafter. If the period of partial incapacity exists for more than 13weeks, the injured employee's post-injury average weekly wage for each13-week interval shall be computed by dividing the employee's total earningsduring the period of partial incapacity by the number of weeks included insuch period; however, if an injured employee's period of partial incapacityends after the close of a 13-week interval but before the close of the next13-week interval, the injured employee's post-injury average weekly wage forsuch portion of the subsequent 13-week interval shall be calculated bydividing the employee's total earnings during the period of partialincapacity by the number of weeks included in such period. When an injuredemployee is under a continuing award of temporary partial benefits, theemployer or the employee shall be entitled to seek a retroactive adjustmentof the temporary partial rate for the 90 days preceding the applicationseeking such adjustment of the temporary partial rate computed in accordancewith the above method of calculation. Any resulting amount due to theemployee shall be paid to the employee. Any resulting credit due to theemployer may be offset dollar for dollar against future compensation benefitsdue the injured employee, subject to the provisions of § 65.2-520. Theemployee is required pursuant to § 65.2-712 to immediately disclose increasesin his earnings. For all other employments, the employee's post-injuryaverage weekly wage may, in the Commission's discretion, be calculated usingthe preceding formula or a week-to-week calculation. In case the partialincapacity begins after a period of total incapacity, the latter period shallbe 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 forlawful employment; nor shall any such injured employee not eligible forlawful employment who is partially incapacitated be entitled during partialincapacity to receive temporary total benefits under § 65.2-500.
B. AmeriCorps members as defined in subdivision r of § 65.2-101 shall not beeligible to receive weekly compensation for partial incapacity, whetherpermanent or temporary, regardless of whether the injury results in death.
C. Food Stamp recipients participating in the work experience component ofthe Food Stamp Employment and Training Program as defined in subdivision s of§ 65.2-101 shall not be eligible to receive weekly compensation for partialincapacity, whether permanent or temporary, regardless of whether the injuryresults in death.
D. Temporary Assistance for Needy Families recipients participating in thework experience component of the Virginia Initiative for Employment NotWelfare Program as defined in subdivision t of § 65.2-101 shall not beeligible to receive weekly compensation for partial incapacity, whetherpermanent 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.)