Indemnity Benefits For Lost Wages

Previously, I have discussed the types of compensation the average claimant receives in workers’ compensation cases in Virginia, namely medical benefits to cover the cost of treatment of the injuries and indemnity benefits to replace the claimant’s wages lost because of the injury. I have spent some time looking at a claim for medical benefits. Now, I begin to discuss indemnity benefits.

The Virginia Supreme Court (VSC) has declared that a “fair construction” of the Workers’ Compensation Act allows for compensation for both total incapacity (see Virginia Code section 65.2-500) and partial incapacity (see Virginia Code section 65.2-502).
70 O.I.C. 216 (1991), (the fact that an employee must work longer hours to earn greater wages following a compensable injury is not a basis for awarding compensation benefits).

Regardless of whether the claimant receives benefits for total or partial disability, such benefits are subject to a limit of 500 weeks. Periods of temporary interruption in payment of indemnity benefits which are brief, occur from time to time, and during which no compensation was owing or paid, do not extend the period for paying indemnity beyond the 500 weeks.
2012 Va. App. LEXIS 119 (Apr. 17, 2012).

So far, the discussion has focused on how indemnity benefits are similar whether for total or partial disability. However, the two forms of indemnity are quite different in one key aspect. Although both sections 65.2-500 and 65.2-502 provide payment for injured workers, the corresponding tests for qualification for these benefits differ significantly. Section 65.2-500 governs total incapacity and applies a loss of earning capacity test, while section 65.2-502 pertains to partial incapacity and implies an economic loss test.
8 Va. App. 267, 380 S.E.2d 31 (1985).

51 O.I.C. 207 (1969).

Another key difference between total and partial incapacity is the duty imposed on employees who are partially incapacitated to market their residual capacity. The duty to market is so crucial to TPD claims that it deserves its own post which I hope to post soon.

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