                                 CODE OF VIRGINIA

COMPENSATION FOR PARTIAL INCAPACITY; EXCLUSION OF AMERICORPS MEMBERS, CERTAIN
FOOD STAMP EMPLOYMENT AND TRAINING PROGRAM PARTICIPANTS, AND CERTAIN TEMPORARY
ASSISTANCE FOR NEEDY FAMILIES PARTICIPANTS (§ 65.2-502)

A. Except as otherwise provided in &#xA7; 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 &#xA7; 65.2-500. For purposes of calculating an
injured employee&#8217;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&#8217;s post-injury average weekly wage shall be
computed by dividing the employee&#8217;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&#8217;s post-injury average weekly wage for each
13-week interval shall be computed by dividing the employee&#8217;s total
earnings during the period of partial incapacity by the number of weeks included
in such period; however, if an injured employee&#8217;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&#8217;s post-injury average
weekly wage for such portion of the subsequent 13-week interval shall be
calculated by dividing the employee&#8217;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 &#xA7; 65.2-520. The employee is required pursuant
to &#xA7; 65.2-712 to immediately disclose increases in his earnings. For all
other employments, the employee&#8217;s post-injury average weekly wage may, in
the Commission&#8217;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
&#xA7; 65.2-500.

B. AmeriCorps members as defined in subdivision r of &#xA7; 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 &#xA7;
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 &#xA7; 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.

HISTORY: 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.