How much will I be paid per week?
Virginia law sets out the maximum and minimum weekly payments available to an injured worker when the worker is unable to work. The maximum of compensation that an injured worker can be paid on a weekly basis is determined by the average weekly wage of the entire Commonwealth of Virginia. That amount is calculated by the Virginia Workers Compensation Commission in accordance with section 65.2-500 of the Virginia Code. Each year, this number is adjusted based upon actual economic data for the next year. Since the maximum and minimum amount changes from year to year, it is important for an injured worker to check the calculation to understand and make sure they are being paid properly. Because this figure changes from year to year, an attorney handling a compensation case should check the applicable calculation.
The analysis does not stop there. The amount of money that workers that are injured at work and unable to work are awarded depends upon the worker's actual wages for the 52 weeks before the accident. For example, if an injured worker made $40,000 in the 52 weeks before the accident, the injured worker's Pre-Injury Average weekly wage would likely be established to be $769.23 per week. This is a very important number and drives the amount of compensation that an injured worker may be entitled to throughout the life of the worker's compensation claim. There are exceptions to the calculation, but generally, this method of calculating the injured workers average weekly wage is the standard way that the Virginia Workers Compensation Commission and attorneys calculate the injured workers wages.
Once the injured workers pre-injury average weekly wage is determined, the injured worker, insurance company and/or the Virginia Workers Compensation Commission will calculate the injured workers “compensation rate”. This is pretty straight forward. If the Commission finds or the parties agree that an injured worker is totally unable to work the injured worker's weekly compensation rate is ⅔ of the pre-injury average weekly wage. In the example above the injured worker would receive $512.83 per week ($769.23 x ⅔). This is called the injured workers “temporary total compensation rate”
If the Commission finds or the parties agree that the injured worker is on is partially incapacitated (light duty or restricted duty), the employer is responsible for compensating the employee at the rate of 662/3 percent of the difference between employee's average weekly earnings before and after the accident and partially disabling injury. Since the only basis for compensation under Virginia Law is that the employee has sustained a reduction in wages as a result of some level of disability, if the employee's wages are the same as or more than the pre-injury wage, no compensation is awarded. In other words, regardless of the injured worker's disability, if the injured worker is being paid the same or more than his or her pre-injury average weekly wage, wage loss compensation is due to the injured worker. (This is not to be confused with permanent partial disability benefits!)
Here are a few other important factors in determining how much wage loss an injured worker can receive:
- Benefits are available for a maximum of 500 weeks. Unless an injured worker qualifies for permanent total disability benefits, the injured worker is limited to 500 weeks of benefits. This takes into account temporary total and temporary partial benefits.
- The amount of partial compensation due is based on the claimant's actual earnings following the injury, not what the employee expected to earn.
- Temporary partial benefits do not depend upon what work the claimant returns to. In other words, whether or not the injured worker returns to his or her normal occupation, a different occupation with the employer or another employer all together, the compensation is still calculated the same.
- There are special rules for self-employed workers.
- If the period of partial incapacity exists for 13 weeks or less, the injured employee's post-injury average weekly wage is computed by dividing the employee's total earnings during the first two weeks of partial incapacity by two. If the duration of the partial disability is longer than 13 weeks, the post-injury average weekly wage for each 13-week period is computed by dividing the
- When an employee is on an “open” award for temporary partial benefits the employer or the injured worker can seek a “retroactive” adjustment of the temporary partial rate for the 90 days preceding the application seeking such adjustment of the temporary partial rate. This allows for efficiency so that the injured worker can be assured of payment consistently each week and so both the injured worker and the employer have the ability to calculate the actual amount due, even if that payment period has passed.
How long do wage loss benefits last?
As noted above, a time limit exists on the number of weeks that an injured worker can receive. Total compensation payable under the Act cannot exceed 500 weeks of benefits. There are exceptions to this rule:
- Injured workers entitled to permanent and total incapacity benefits are not limited to 500 weeks of wage loss benefits
- Claimant's who are permanently disabled due to coal worker's pneumoconiosis are not limited to 500 weeks of wage loss benefits
- Death benefits from coal worker's pneumoconiosis are not limited to 500 weeks of benefits.
Is there a Cost of Living adjustment if I receive wage loss benefits for a long period of time?
In certain circumstances, an annual cost-of-living supplement may be awarded to an injured worker and their dependents receiving compensation. The following claimants are eligible for the increase:
- Employees and their dependents who are receiving compensation benefits for total incapacity
- Injured workers who have been awarded permanent and total disability benefits under the Act.
- Claimants receiving death benefits
- Claimants receiving disability or death benefits due to coal worker's pneumoconiosis.
There are at least 2 other factors that are important for the injured worker to know:
- The claimant must file a claim with the Virginia Workers Compensation Commission before the supplement is awarded
- The claimant also must show obtain information from the Social Security Administration to show their entitlement.
Calculation of weekly wage loss benefits is sometimes simple. In cases where it is not, many legal issues can arise. If you are someone you know needs assistance determining if the correct amount of wage loss benefits are being paid, please do not hesitate to contact our firm. We are here to help!