Whitt & Del Bueno, Attorneys at Law

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Virginia General Assemby Update

By Mike Del Bueno

Virginia’s General Assembly recently concluded its session that began January 11, 2006, and there are a few workers’ compensation bills that passed. This enewsletter will focus on two of those bills and some of the amendments to the law that those bills created.

The first bill significantly amended section 65.2-101(n) of the Virginia Code. Previously under that section, a sole proprietor or partners of a business who elected to be covered for workers’ compensation had to provide notice of his work-related accident to the insurance carrier. As previously written, that code section failed to require that a sole shareholder of a corporation or a sole member of a limited liability company who elected to be covered for workers’ compensation report their work-related accident to the insurance carrier. The injustice that resulted was that the sole shareholder or sole member was essentially reporting his work-related accident to himself, as the business or employer, and this satisfied the workers’ compensation notice provision.

However, the amendment has solved this problem. Now, a sole shareholder of a corporation and a sole member of a limited liability company, in addition to sole proprietors or partners of a business (assuming they have elected to be covered for workers’ compensation) are all required to report their work-related accident directly to the insurance carrier to satisfy the notice provision.

The second bill deals with the calculation of an injured employee’s post-injury average weekly wage for temporary partial disability benefits payable under section 65.2-502 of the Virginia Code. Previously under that section, temporary partial disability benefits were to be based upon 2/3 of the difference between the injured employee’s pre- and post-injury earnings, but there was no guideline given as to how to calculate post-injury earnings.

Now, the new amendment includes guidelines. For instance, the post-injury average weekly wage of commissioned employees, self-employed individuals, and from employees of family-owned businesses is to be calculated by dividing the total earnings during the first two weeks of partial incapacity by two if the period of partial incapacity exists for 13 weeks or less. This amendment, and others in this bill, is designed to remedy the problem of an injured employee who has post-injury earnings that vary greatly from week to week, for reasons such as being self-employed. Other guidelines are present in the amendments, including the Commission’s ability to use discretion to calculate post-injury earnings on a week to week basis for all employment other than commissioned employees, the self-employed and family owned businesses.

The above are just some of the legislative amendments that occurred in this most recent session of the Virginia General Assembly. If you have questions about these or other workers’ compensation changes in the law, give our office a call.