Temporary Partial Disability (TPD) Benefits Through Virginia Workers Compensation

 

The Virginia Workers Compensation Act provides injured employees with wage loss benefits when they suffer a loss in earnings because of restrictions related to their work injuries or occupational disease. Though temporary total disability benefits are the most common type of income benefit paid through workers comp, they are not the only type of income benefit available. You may also receive temporary partial disability (TPD) benefits if you are able to return to light duty work after your work accident but are making less money, either because of working fewer hours or earning a lower wage.

 

Insurance companies make money by finding a way to avoid paying workers compensation benefits to you directly or on your behalf. So don’t be surprised if the insurer refuses to pay you temporary partial disability benefits after you file a claim for workers compensation – even if your treating physician has restricted you to light duty work because of the accident and you are making less money than you were before you got hurt. If this happens to you, or if the insurer stops all workers comp wage loss benefits because you have returned to light duty work, then contact Virginia workplace accident lawyer Corey Pollard for a free consultation. We’re here to protect your legal rights.

 

How Do I Receive Temporary Partial Disability Benefits in Virginia?

 

Even if the insurance company is paying for medical treatment related to your work injuries, you may still have to prove your entitlement to temporary partial disability benefits at a workers compensation hearing.

 

To persuade the Commission that you’re owed TPD benefits in Virginia, you must prove the following:

1. That you suffered an injury by accident arising out of and in the course of your employment or an occupational disease related to your employment.

2. That your authorized treating physician, whom you may have chosen from the panel of physicians offered by your employer, has restricted you to light duty work.

3. That your light duty restrictions prevent you from performing all the responsibilities of the job you held at the time you were hurt.

4. That you have returned to light duty work.

5. That you are earning less than you were earning at the time of your injury.

6. If you are earning less now than you were at the time of your injury because you’re working fewer hours or no overtime, then you must also show that you are conducting a good faith job search that satisfies the Virginia Workers Compensation Commission’s Marketing Guidelines.

 

We recommend contacting an attorney to make sure you’re on pace to prove all the elements necessary to receive an award for temporary partial disability benefits.

 

An Example of How TPD Benefits Work in Virginia

 

Here is an example of how you can prove that you’re owed temporary partial disability payments in Virginia.

 

Before you were injured you were working in construction and making $15 per hour. Your job was physically demanding and required you to lift 100 pounds at a time.

 

After injuring your back and shoulder at work, you start treating with an orthopedic specialist. He prescribes physical therapy, injections, and prescription medication, and restricts you to lifting 10 pounds only.

 

You tell your supervisor about your restrictions and he asks you to come back to work light duty. In your new role you will be a foreman who drives around from job site to job site. Though the job is within your restrictions, it pays just $10 per hour.

 

Under the Virginia Workers Compensation Act you’re entitled to two-thirds of the difference between your regular wages and light duty wages so long as you are working the same hours. If you’re working fewer hours than you were at the time of your injury, including overtime, you must try to make up the loss in earnings by looking for work within your restrictions elsewhere. If not then the Commission may deny your TPD claim.

 

A word of warning. Many workers comp cases are lost because the Commission finds that the injured employee did not conduct a job search that was adequate as  matter of law. Make sure that you contact an attorney if you have work restrictions that prevent you from returning to your regular job. Your attorney can guide you through this complicated situation so that you give yourself the best chance of receiving these important wage loss benefits.

 

The Official Formula for Calculating Temporary Partial Disability Benefits (TPD) in Virginia

 

So how much do you receive if the Virginia Workers Compensation Commission finds that you are partially incapacitated because of your workplace injury and entitled to temporary partial disability benefits? The answer to that question is found in Section 65.2-502 of the Virginia Workers Compensation Act, which provides:

 

when the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, … to the injured employee during such incapacity a weekly compensation equal to 2/3 of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter …

As a general rule you are entitled to 2/3 of the difference in your wages if you’re found entitled to temporary partial disability benefits in Virginia.

 

Temporary partial disability benefits are especially important for high wage earners who are hurt on the job. Those of you who earn $80,000.00 or more per year are penalized by the maximum comp rate set forth by the Commission. But you can still receive TPD benefits even if you earn more than $80,000.00 while on light duty. This is why it’s important to get the highest average weekly wage possible, even if you’re affected by the Commission’s maximum compensation rate.

 

What if my light duty wages fluctuate from week to week?

 

It’s a common scenario. Your employer doesn’t have an official light duty position but tries to make one for you because of pressure from the insurance company. As a result, your wages fluctuate each week. Sometimes you get a full week and even overtime, so you make more than you were making at the time of your injury. Other weeks you get just a few hours and suffer wage loss. How will the Commission determine your entitlement to TPD benefits if you’re making about the same overall but have some weeks where you are making much less.

 

Good question. As a workers comp attorney for injured employees, I try to get my clients TPD benefits for the weeks they suffer wage loss, even though their total earnings for the year may be equal to or greater than their pre-injury earnings. The Commission has the discretion to decide the best way to calculate light duty earnings under Code Section 65.2-202, which states:

 

… the employee’s post-injury average weekly wage may, in the Commission’s discretion, be calculated using the preceding formula or a week-to-week calculation.

 

As such, you should use whatever TPD calculation puts the most money in your pocket.

 

How Long Can I Receive Temporary Partial Disability Benefits in Virginia?

 

You can receive up to 500 weeks of temporary total disability and temporary partial disability benefits combined.

 

For example, if you have received 100 weeks of TTD before returning to light duty work making less than you were making at the time of the injury, then you are entitled to at most 400 weeks of TPD benefits.

 

Can I Receive TPD Benefits and PPD Benefits at the Same Time?

 

Yes, you can receive temporary partial disability benefits at the same time you receive permanent partial disability benefits for loss of an injured body part or loss of use of the injured body part. This is key difference between TPD and TTD.

 

You cannot, however, receive TTD and TPD benefits at the same time. You can receive one or the other.

 

Am I Entitled to TPD if I’m an Undocumented Worker?

 

No. The Virginia Workers Compensation Act states that you cannot receive TPD benefits if you are not eligible for lawful employment. You can, however, receive TTD benefits if you are taken out of all work by your treating physician.

 

Get Temporary Partial Disability Benefits in Virginia

 

Many injured employees live pay check to pay check. They cannot afford to earn less money following a workplace accident that leaves them with light duty restrictions.

 

Get every penny you deserve. Contact Corey Pollard, author of the Virginia Workers Compensation Guide to Frequently Asked Questions, for help. We’ll evaluate every aspect of your claim to help you win at hearing and negotiate a fair workers compensation settlement.

 

We represent all injured workers in claims arising out of workplace accidents in and near Newport News, Hampton, Norfolk, Virginia Beach, Chesapeake, Richmond, Fredericksburg, Charlottesville, WilliamsburgRoanoke, Staunton, Prince William County, and Fairfax County. So no matter where you were hurt or what type of injury you suffered on the job, we can help you and your family.