Partially Disabled Employees Laid Off Due to COVID-19

All:
We have received the following question from many clients over the last several weeks and thought it would be beneficial to share our answer more broadly:

Question:
As a result of Governor Northam’s March 30 ‘Stay at Home’ Order for all non-essential employees, many employers have furloughed employees. What should the Virginia adjuster do with injured workers that were working light duty receiving temporary partial disability benefits and were laid off with other employees because of this current situation?

Answer:
The Virginia adjuster should file an Application to terminate benefits alleging that wage loss is no longer related to the work accident consistent with Virginia case law. Indemnity must be paid through the date of filing consistent with Rule 1.4 of the Rules of the Commission. It is appropriate that the injured worker should be pursuing unemployment benefits with his or her other colleagues that were also furloughed. The recently passed CARES Act offers augmented unemployment benefits for Virginians.

In 2016, the Court of Appeals, addressed this issue in its decision in the case of King William County v. Jones:

In a typical case of partial disability, the fact that a claimant’s employment is terminated while on partial disability often may provide evidence of an economic loss. For example, if a partially disabled claimant cannot return to pre-injury employment with the employer even though her position continues to exist and the employer offers no selective employment consistent with the claimant’s restrictions, a claimant has produced some evidence that she has suffered an economic loss as a result of her injury—but for her work-related injury, she would still be in her pre-injury position…

…The equation is different, however, when, as here, the claimant’s employment with employer comes to an end because her position is eliminated along with the positions of her able-bodied colleagues. In such cases, although a claimant will have lost wages, evidence is required to establish that the loss of wages was caused by, or was in any way related to, her injury.

Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.

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