Code of Virginia

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Code of Virginia
Title 65.2. Workers' Compensation
Chapter 5. Compensation and Payment Thereof
4/23/2021

Chapter 5. Compensation and Payment Thereof.

§ 65.2-500. Compensation for total incapacity; computation of average wage; exclusion of AmeriCorps members, certain Food Stamp Employment and Training Program participants, and certain Temporary Assistance for Needy Families participants.

A. Except as provided in subsections E, F and G, when the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such total incapacity, a weekly compensation equal to 66 2/3 percent of his average weekly wages, with a minimum not less than 25 percent and a maximum of not more than 100 percent of the average weekly wage of the Commonwealth as defined herein. In any event, income benefits shall not exceed the average weekly wage of the injured employee. Any farm employer who continues to furnish benefits while the employee is incapacitated shall be given credit for the value of such benefits so furnished when computing the compensation due the employee.

B. For the purpose of this section the average wage in the Commonwealth shall be determined by the Commission as follows: On or before January 1 of each year, the total wages, excluding wages of United States government employees, reported on contribution reports to the Virginia Employment Commission for the 12-month period ending the preceding June 30 shall be divided by the average monthly number of insured workers (determined by dividing the total insured workers reported for that 12-month period by 12). The average annual wage thus obtained shall be divided by 52 and the average weekly wage thus determined rounded to the nearest dollar. The average weekly wage as so determined shall be applicable for the full period during which income benefits are payable, when the date of occurrence of injury or of disablement in the case of disease falls within the year commencing with the July 1 following the date of determination.

C. The minimum or the maximum weekly income benefits shall not be changed for any year unless the computation herein provided results in an increase or decrease of $2 or more, raised to the next even dollar in the level of the minimum or the maximum weekly income benefits.

D. The weekly compensation on account of total and permanent incapacity as defined by subsection C of § 65.2-503 shall continue for the lifetime of the injured employee without limit as to total amount.

E. AmeriCorps members as defined in subdivision r of § 65.2-101 shall not be eligible to receive weekly compensation for total incapacity, whether permanent or temporary, regardless of whether the injury results in death.

F. Food Stamp recipients participating in the work experience component of the Food Stamp Employment and Training Program as defined in subdivision s of § 65.2-101 shall not be eligible to receive weekly compensation for total incapacity, whether permanent or temporary, regardless of whether the injury results in death.

G. 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 § 65.2-101 shall not be eligible to receive weekly compensation for total incapacity, whether permanent or temporary, regardless of whether the injury results in death.

Code 1950, § 65-51; 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, § 65.1-54; 1970, c. 470; 1972, c. 229; 1973, c. 542; 1974, c. 560; 1975, c. 447; 1991, c. 355; 1997, c. 511; 2004, c. 888; 2005, c. 472; 2019, c. 210.

§ 65.2-501. Incapacity after permanent loss.

After compensation has been paid as provided in § 65.2-503, the employee may, within one year from the date compensation was last due under this section, file an application for compensation for incapacity to work, subject to the provisions of §§ 65.2-500 and 65.2-502. Such application shall be considered and determined as of the date incapacity for work actually begins or as of the date ninety days prior to the date of filing, whichever is later.

Code 1950, § 65-53; 1964, cc. 116, 190; 1968, cc. 347, 660, § 65.1-56; 1970, c. 470; 1972, c. 229; 1975, cc. 446, 450; 1976, c. 655; 1982, c. 326; 1983, c. 287; 1987, c. 560; 1988, cc. 564, 596.

§ 65.2-502. Compensation for partial incapacity; exclusion of AmeriCorps members, certain Food Stamp Employment and Training Program participants, and certain Temporary Assistance for Needy Families participants.

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

B. AmeriCorps members as defined in subdivision r of § 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 § 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 § 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.

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.

§ 65.2-503. Permanent loss.

A. Compensation for permanent partial and permanent total loss and disfigurement shall be awarded as provided in this section.

B. The following losses shall be compensated for the period specified at the rate of 66 2/3 percent of the average weekly wage as defined in § 65.2-101:

aLossCompensation Period
b1. Thumb60 weeks.
c2. First finger (index finger)35 weeks.
d3. Second finger30 weeks.
e4. Third finger20 weeks.
f5. Fourth finger (little finger)15 weeks.
g6. First phalanx of the thumb or any fingerone-half compensation for loss of entire thumb or finger.
hThe loss of more than one phalanx of a thumb or finger is deemed the loss of the entire thumb or finger. Amounts received for loss of more than one finger shall not exceed compensation provided for the loss of a hand.
i7. Great toe30 weeks.
j8. A toe other than a great toe10 weeks.
k9. First phalanx of any toeone-half compensation for loss of entire toe.
lThe loss of more than one phalanx of a toe is deemed the loss of the entire toe.
m10. Hand150 weeks.
n11. Arm200 weeks.
o12. Foot125 weeks.
p13. Leg175 weeks.
q14. Permanent total loss of the vision of an eye100 weeks.
r15. Permanent total loss of hearing of an ear50 weeks.
s16. Severely marked disfigurement of the body resulting from an injury not otherwise compensated by this sectionnot exceeding 60 weeks.
t17. Pneumoconiosis, including but not limited to silicosis and asbestosis, medically determined to be in the

 

ua. First stage50 weeks.
vb. Second stage100 weeks.
wc. Third stage300 weeks.
x18. Byssinosis50 weeks.

C. Compensation shall be awarded pursuant to § 65.2-500 for permanent and total incapacity when there is:

1. Loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof in the same accident;

2. Injury for all practical purposes resulting in total paralysis, as determined by the Commission based on medical evidence; or

3. Injury to the brain which is so severe as to render the employee permanently unemployable in gainful employment.

D. In construing this section, the permanent loss of the use of a member shall be equivalent to the loss of such member, and for the permanent partial loss or loss of use of a member, compensation may be proportionately awarded. Compensation shall also be awarded proportionately for partial loss of vision or hearing.

E. Except as provided in subsection C, the weekly compensation payments referred to in this section shall be subject to the same limitations as to maximum and minimum as set out in § 65.2-500.

1. Compensation awarded pursuant to this section shall be payable after payments for temporary total incapacity pursuant to § 65.2-500.

2. Compensation pursuant to this section may be paid simultaneously with payments for partial incapacity pursuant to § 65.2-502. Where compensation pursuant to this section is paid simultaneously with payments for partial incapacity pursuant to § 65.2-502, each combined payment shall count as two weeks against the total maximum allowable period of 500 weeks.

Code 1950, § 65-53; 1964, cc. 116, 190; 1968, cc. 347, 660, § 65.1-56; 1970, c. 470; 1972, c. 229; 1975, cc. 446, 450; 1976, c. 655; 1982, c. 326; 1983, c. 287; 1987, c. 560; 1988, cc. 564, 596; 1991, c. 355; 1997, c. 511; 2000, c. 520.

§ 65.2-504. Compensation for disability from coal worker's pneumoconiosis; insurance of coal operator.

A. An employee eligible for an award for coal worker's pneumoconiosis benefits shall be compensated according to the following schedule:

1. For first stage coal worker's pneumoconiosis medically determined from radiographic evidence and classified under the current International Labour Office Classification of Radiographs of the Pneumoconioses where there is no present impairment for work, 66 2/3 percent of the average weekly wage as defined in § 65.2-101, for fifty weeks, up to 100 percent of the average weekly wage of the Commonwealth as defined in § 65.2-500.

2. For second stage coal worker's pneumoconiosis medically determined from radiographic evidence and classified under the current International Labour Office Classification of Radiographs of the Pneumoconioses where there is no present impairment for work, 66 2/3 percent of the average weekly wage as defined in § 65.2-101 for 100 weeks, up to 100 percent of the average weekly wage of the Commonwealth as defined in § 65.2-500.

3. For third stage coal worker's pneumoconiosis medically determined from radiographic evidence and classified under the current International Labour Office Classification of Radiographs of the Pneumoconioses and involving progressive massive fibrosis or medically classified as being A, B or C under the International Labour Office (hereafter referred to as I.L.O.) classifications but where there is no apparent impairment for work, 66 2/3 percent of the average weekly wage as defined in § 65.2-101, for 300 weeks, up to 100 percent of the average weekly wage of the Commonwealth as defined in § 65.2-500.

4. For coal worker's pneumoconiosis medically determined to be A, B or C under the I.L.O. classifications or which involves progressive massive fibrosis, or for any stage of coal worker's pneumoconiosis when it is accompanied by sufficient pulmonary function loss as shown by approved medical tests and standards to render an employee totally unable to do manual labor in a dusty environment and the employee is instructed by competent medical authority not to attempt to do work in any mine or dusty environment and if he is in fact not working, it shall be deemed that he has a permanent disability and he shall receive 66 2/3 percent of his average weekly wage as defined in § 65.2-101 during the three years prior to the date of filing of the claim, up to 100 percent of the average weekly wage of the Commonwealth as defined in § 65.2-500 for his lifetime without limit as to the total amount.

B. In any case where partial disability as mentioned in subsection A of this section later results in total disability, the employer shall receive credit on any permanent disability payments by being allowed to deduct 25 percent of each weekly payment until payments for partial disability hereunder have been fully accounted for.

C. In any case where there is a question of whether a claimant with pneumoconiosis is suffering from coal worker's pneumoconiosis or from some other type of pneumoconiosis such as silicosis, it shall be conclusively presumed that he is suffering from coal worker's pneumoconiosis if he has had injurious exposure to coal dust.

D. In the event that any coal operator wishes to insure himself under standard workers' compensation insurance rather than be self-insured against the risks and liabilities imposed by this section or by § 65.2-513, any such insurance issued in this Commonwealth covering such risks shall be rated separately for premium purposes and shall not affect workers' compensation rates for any other employers not exposed to such risks.

E. All members of any panel or committee required to interpret or classify a chest roentgenogram for purposes of diagnosing a coal worker's pneumoconiosis shall be B-readers approved by the National Institute for Occupational Safety and Health.

1972, c. 619, § 65.1-56.1; 1973, c. 436; 1974, cc. 201, 560; 1975, c. 447; 1990, c. 610; 1991, c. 355; 2000, cc. 408, 520; 2011, c. 513.

§ 65.2-505. Injuries in different employments; injury to employee with disability; subsequent permanent injury by accident in service to employer.

A. Except for hearing or vision loss that has not reached a compensable level of disability, if an employee has a permanent disability or has sustained a permanent injury in service in the armed forces of the United States or in another employment other than that in which he receives a subsequent permanent injury by accident, such as specified in § 65.2-503, he shall be entitled to compensation only for the degree of incapacity which would have resulted from the later accident if the earlier disability or injury had not existed.

B. Except for hearing or vision loss that has not reached a compensable level of disability, if an employee has a permanent disability or has sustained a permanent injury in service to his employer and receives a subsequent permanent injury by accident, such as specified in § 65.2-503, he shall be entitled to compensation only for the degree of incapacity which would have resulted from the later accident if the earlier disability or injury had not existed.

Code 1950, § 65-55; 1968, c. 660, § 65.1-58; 1991, c. 355; 1996, c. 448.

§ 65.2-506. Compensation after second injury in same employment.

If an employee receives an injury for which compensation is payable while he is still receiving or entitled to compensation for a previous injury in the same employment, he shall not at the same time be entitled to compensation for both injuries, but if he is, at the time of the second injury, receiving compensation under the provisions of § 65.2-503, payments of compensation thereunder shall be suspended during the period compensation is paid on account of the second injury, and after the termination of payments of compensation for the second injury, payments on account of the first injury shall be resumed and continued until the entire amount originally awarded has been paid. However, if, at the time of the second injury, he is receiving compensation under the provisions of § 65.2-502, then no compensation shall be payable on account of the first injury during the period he receives compensation for the second injury.

Code 1950, § 65-56; 1968, c. 660, § 65.1-59; 1991, c. 355.

§ 65.2-507. Same employment; when both injuries permanent.

If an employee receives a permanent injury as specified in § 65.2-503, after having sustained another permanent injury in the same employment, he shall be entitled to compensation for both injuries, but the total compensation shall be paid by extending the period and not by increasing the amount of weekly compensation.

Code 1950, § 65-57; 1968, c. 660, § 65.1-60; 1972, c. 619; 1991, c. 355.

§ 65.2-508. Foreign injuries.

A. When an accident happens while the employee is employed elsewhere than in this Commonwealth which would entitle him or his dependents to compensation if it had happened in this Commonwealth, the employee or his dependents shall be entitled to compensation, if:

1. The contract of employment was made in this Commonwealth; and

2. The employer's place of business is in this Commonwealth;

provided the contract of employment was not expressly for service exclusively outside of the Commonwealth.

B. However, if an employee shall receive compensation or damages under the laws of any other state, nothing herein contained shall be construed so as to permit a total compensation for the same injury greater than is provided for in this title.

Code 1950, § 65-58; 1968, c. 660, § 65.1-61; 1976, c. 151; 1991, c. 355.

§ 65.2-509. Commencement of compensation.

No compensation shall be allowed for the first seven calendar days of incapacity resulting from an injury except the benefits provided for in § 65.2-603; but if incapacity extends beyond that period, compensation shall commence with the eighth day of disability. If, however, such incapacity shall continue for a period of more than three weeks, then compensation shall be allowed from the first day of such incapacity.

Code 1950, § 65-59; 1968, c. 660, § 65.1-62; 1976, c. 165; 1991, c. 355.

§ 65.2-510. Refusal of employment; compensation for partial incapacity.

A. If an injured employee refuses employment procured for him suitable to his capacity, he shall only be entitled to the benefits provided for in §§ 65.2-503 and 65.2-603, excluding vocational rehabilitation services provided for in subdivision A 3 of § 65.2-603, during the continuance of such refusal, unless in the opinion of the Commission such refusal was justified.

B. If an injured employee cures his unjustified refusal by accepting employment suitable to his capacity at a wage less than that originally offered, the employer shall pay or cause to be paid to the injured employee during his partial incapacity pursuant to § 65.2-502, a weekly compensation equal to 66 2/3 percent of the difference between his average weekly wages before his injury and the average weekly wage the employee would have earned by accepting the original proffered light duty employment.

C. A cure of unjustified refusal pursuant to subsection A may not be established if the unjustified refusal lasts more than six months from the last day for which compensation was paid before suspension pursuant to this section; however, the six-month period may be extended by the number of days a claimant is totally disabled if the disability commenced during such six-month period. When an injured employee is precluded from accepting employment as a result of pregnancy, the six-month period for curing the refusal may be tolled during such period as a physician certifies medical disability.

Code 1950, § 65-60; 1968, c. 660, § 65.1-63; 1991, c. 355; 1995, c. 319; 1996, c. 252.

§ 65.2-510.1. Employee imprisonment; suspension of benefits.

A. Whenever an employee is imprisoned in a jail, state correctional facility, or any other place of incarceration and (i) the imprisonment resulted from the employee's conviction of a criminal offense and followed his sentencing therefor by a court of competent jurisdiction, (ii) the employee is receiving compensation for temporary total incapacity pursuant to § 65.2-500 or temporary partial incapacity under § 65.2-502, and (iii) the employee is medically released to perform selective employment, compensation benefits for wage loss shall be suspended under § 65.2-708 upon filing of a proper application to the Commission.

B. If benefits are suspended for incarceration pursuant to this section and the employee's conviction is subsequently reversed on appeal and no further appeals or prosecutions concerning such prior conviction are had, the employee's benefits shall be restored under § 65.2-708 upon filing of a proper application to the Commission.

C. The provisions of this section shall only apply to an employee who receives a workers' compensation award after July 1, 1992.

1992, c. 466.

§ 65.2-511. Compensation to employee's distributees upon his death from any other cause.

When an employee receives or is entitled to compensation under this title for an injury covered by § 65.2-503 and dies from a cause other than the injury for which he was entitled to compensation, payment of the unpaid balance of compensation shall be made to his statutory dependents under this chapter, in lieu of the compensation the employee would have been entitled to had he lived. However, if the death is due to a cause that is compensable under this title and the dependents of such employee are awarded compensation therefor, all right to unpaid compensation provided by this section shall terminate.

Code 1950, § 65-61; 1968, c. 660, § 65.1-64; 1991, c. 355.

§ 65.2-512. Compensation to dependents of an employee killed; burial expenses.

A. Except as provided in subsections F, G and H, if death results from the accident within nine years, the employer shall pay, or cause to be paid, compensation in weekly payments equal to 66 and two-thirds percent of the employee's average weekly wages, but not more than 100 percent of the average weekly wage of the Commonwealth as defined in § 65.2-500 nor less than 25 percent of the average weekly wage as defined therein:

1. To those persons presumed to be wholly dependent upon the deceased employee as set forth in subdivisions A 1 and 2 of § 65.2-515, for a period of 500 weeks from the date of injury; or

2. If there are no total dependents pursuant to subdivision A 1 or 2 of § 65.2-515, to those persons presumed to be wholly dependent as set forth in subdivision A 3 of § 65.2-515, and to those determined to be wholly dependent in fact, for a period of 400 weeks from the date of injury; or

3. If there are no total dependents, to partial dependents in fact, for a period of 400 weeks from the date of injury.

B. The employer shall also pay burial expenses not exceeding $10,000 and reasonable transportation expenses for the deceased not exceeding $1,000.

C. Benefits shall be divided equally among total dependents, to the exclusion of partial dependents. If there are no total dependents, benefits shall be divided among partial dependents according to the dependency of each upon the earnings of the employee at the time of the injury, in the proportion that partial dependency bears to total dependency.

D. If benefits are terminated as to any member of a class herein, that member's share shall be divided among the remaining members of the class proportionately according to their dependency.

E. When weekly payments have been made to an injured employee before his death, the compensation to dependents shall begin from the date of the last of such payments but shall not continue for a period longer than specified in subsection A.

F. No benefits shall be paid pursuant to this section to the dependents of an AmeriCorps member as defined in subdivision 1 r of the definition of "employee" in § 65.2-101.

G. No benefits shall be paid pursuant to subsection A, C, D, or E to the dependents of a Food Stamp recipient participating in the work experience component of the Food Stamp Employment and Training Program as defined in subdivision 1 s of the definition of "employee" in § 65.2-101.

H. No benefits shall be paid pursuant to subsection A, C, D, or E to the dependents of a Temporary Assistance for Needy Families recipient participating in the work experience component of the Virginia Initiative for Education and Work as defined in subdivision 1 t of the definition of "employee" in § 65.2-101.

Code 1950, §§ 65-62, 65-65, 65-67; 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, §§ 65.1-65, 65.1-68, 65.1-70; 1970, cc. 470, 643; 1972, c. 229; 1973, cc. 401, 542; 1974, c. 560; 1975, c. 447; 1976, c. 166; 1981, c. 247; 1984, c. 409; 1985, c. 35; 1991, c. 355; 1992, cc. 2, 147; 1998, c. 100; 2004, c. 888; 2005, c. 472; 2019, c. 210; 2020, c. 900.

§ 65.2-513. Compensation for death from coal worker's pneumoconiosis; determining whether death was due to pneumoconiosis or any chronic occupational lung disease.

A. If death results from coal worker's pneumoconiosis or if the employee was totally disabled by coal worker's pneumoconiosis at the time of his death and claim for compensation is made within three years after such death, the employer shall pay or cause to be paid to the surviving spouse of the deceased employee until his death or remarriage or the minor dependents of the employee until such minor dependents reach the age of eighteen (or twenty-three, so long as they remain as full-time students in a generally accredited institution of learning) or such other legal dependents as the deceased employee might have had at the time of his death for the duration of such dependency, 66 2/3 percent of the employee's average weekly wage during the last three years that he worked in the coal mines, up to 100 percent of the average weekly wage of the Commonwealth as defined in § 65.2-500 without any specific limit as to the number of such weeks. However, any claim for compensation of an employee who was totally disabled by coal worker's pneumoconiosis at the time of his death shall be paid only to the extent required by federal law.

B. The Commission shall, by regulation duly drawn and published after notice and hearing, prescribe standards, not inconsistent with those prescribed by the Secretary of Health and Human Services under the 1969 Federal Coal Mine Health and Safety Act, as amended, for determining whether the death or total disability of an employee was due to pneumoconiosis or any chronic occupational lung disease.

C. In prescribing such standards the following factors shall be included:

1. If an employee who died from a respirable (respiratory) disease was employed for ten years or more in an environment where he was injuriously exposed to such a disease, there shall be a rebuttable presumption that his disease arose out of such employment, or if he became totally disabled from coal worker's pneumoconiosis or if such disease significantly contributed to his death or disability, there shall be a rebuttable presumption that his death or disability was due to such disease.

2. Where there is clear evidence of exposure to an occupational lung disease, the Commission may make its determination whether compensation is payable to the dependents based on the description of the employee's symptoms, X-rays, and other competent medical evidence, and the opinion of experts as to whether those symptoms reasonably described the symptoms of such an occupational disease.

3. The statement as to the cause of death on a death certificate may be considered as evidence in any such cases but shall not be controlling on the Commission's findings. The Commission may also, by regulation, establish standards, not inconsistent with those prescribed by the Secretary of Labor under the 1969 Federal Coal Mine Health and Safety Act as amended, for apportioning liability for benefits under this section and under § 65.2-504 A 4 among more than one operator, where such apportionment is appropriate, provided that no apportionment shall operate to deprive an employee of the full benefits due him under this title.

1972, c. 619, § 65.1-65.1; 1973, cc. 401, 436; 1974, c. 560; 1975, c. 447; 1991, c. 355.

§ 65.2-514. Special provisions for coal worker's pneumoconiosis claims for total disability or death.

In the case of claims for death or total disability under subdivision A 4 of § 65.2-504 or § 65.2-513, the following matters shall be required or effective only to the extent that they are allowed by the 1969 Federal Coal Mine Health and Safety Act as amended and the regulations issued thereunder:

1. Notice to the employer under § 65.2-405;

2. Any limitation for the filing of a claim for benefits for death or total disability under §§ 65.2-406 and 65.2-601;

3. Waivers as provided under § 65.2-407;

4. Settlements agreed to, allowed, or granted under § 65.2-701; and

5. The right of an employer to refuse employment to an applicant or to discharge a claimant because he has or is susceptible to coal worker's pneumoconiosis.

1973, c. 436, § 65.1-65.2; 1991, c. 355.

§ 65.2-515. Persons conclusively presumed to be wholly dependent.

A. The following persons shall be conclusively presumed to be dependents wholly dependent for support upon the deceased employee:

1. A spouse upon his deceased spouse whom he had not voluntarily deserted at the time of the accident or with whom he lived at the time of the accident, if he is then actually dependent upon his deceased spouse;

2. A child under the age of 18 upon a parent and a child over such age if physically or mentally incapacitated from earning a livelihood or a child under the age of 23 if enrolled as a full-time student in any accredited educational institution; and

3. Parents in destitute circumstances, provided that there are no total dependents pursuant to other provisions of this section.

B. As used in this section, "child" includes a stepchild, a legally adopted child, a posthumous child, and an acknowledged illegitimate child, but does not include a married child, and "parent" includes stepparents and parents by adoption.

Code 1950, § 65-63; 1968, c. 660, § 65.1-66; 1973, cc. 401, 542; 1991, c. 355; 2020, c. 900.

§ 65.2-516. Other cases of dependency.

In all other cases questions of dependency in whole or in part shall be determined in accordance with the facts as the facts are at the time of the accident; but no allowance shall be made for any payment made in lieu of board and lodging or services and no compensation shall be allowed unless the dependency existed for a period of three months or more prior to the accident.

Code 1950, § 65-64; 1968, c. 660, § 65.1-67; 1991, c. 355.

§ 65.2-517. Termination of dependency.

For the purpose of this title, the dependence of a widow or widower of a deceased employee shall terminate with death or remarriage, and the amount to be theretofore received by him or her shall be divided among the children or other dependents in the proportion of which they are receiving compensation, and the dependence of a child or any minor dependent, except a child or minor dependent physically or mentally incapacitated from earning a livelihood, or a full-time student, as defined in § 65.2-515, shall terminate with the attainment of eighteen years of age.

Code 1950, § 65-66; 1960, c. 298; 1968, c. 660, § 65.1-69; 1973, cc. 401, 542; 1991, c. 355.

§ 65.2-518. Limitation upon total compensation.

The total compensation payable under this title shall in no case be greater than 500 weeks nor shall it exceed the result obtained by multiplying the average weekly wage of the Commonwealth as defined in § 65.2-500 for the applicable year by 500, except in cases of permanent and total incapacity as defined in § 65.2-503 C and in cases of permanent disability under subdivision A 4 of § 65.2-504 and death from coal worker's pneumoconiosis under § 65.2-513.

Code 1950, § 65-68; 1952, c. 226; 1954, c. 654; 1956, c. 243; 1958, c. 568; 1960, c. 556; 1964, c. 94; 1966, c. 64; 1968, cc. 8, 660, § 65.1-71; 1970, c. 470; 1972, c. 229; 1973, c. 542; 1974, c. 560; 1975, c. 447; 1991, c. 355; 1997, c. 511.

§ 65.2-519. When limitations inapplicable to injuries arising out of pneumoconiosis.

The limitations as to the maximum periods and maximum total amounts listed in §§ 65.2-500, 65.2-512, and 65.2-518 shall not apply to injuries arising out of pneumoconiosis.

1972, c. 615, § 65.1-71.1; 1991, c. 355.

§ 65.2-520. Voluntary payment by employer.

Any payments made by the employer to the injured employee during the period of his disability, or to his dependents, which by the terms of this title were not due and payable when made, may, subject to the approval of the Commission, be deducted from the amount to be paid as compensation, provided that, in the case of disability, such deductions shall be made by reducing the amount of the weekly payment in an amount not to exceed one-fourth of the amount of the weekly payment for as long as is necessary for the employer to recover his voluntary payment. However, any payments made to an injured employee under the Longshore and Harbor Workers' Compensation Act of 1927, as amended, 33 U.S.C. § 901 et seq., may be deducted in full from the amount to be paid as compensation for the same injury under this title.

Code 1950, § 65-69; 1968, c. 660, § 65.1-72; 1991, c. 355; 1998, c. 68; 2007, c. 356.

§ 65.2-521. Time of payment.

The Commission, upon application of either party, may, in its discretion, having regard to the welfare of the employee and the convenience of the employer, authorize compensation to be paid bi-weekly, monthly, or quarterly instead of weekly.

Code 1950, § 65-70; 1968, c. 660, § 65.1-73; 1991, c. 355.

§ 65.2-522. Lump sum payments, generally.

When the parties agree and the Commission deems it to be to the best interests of the employee or his dependents, or when it will prevent undue hardships on the employer, or his insurance carrier, without prejudicing the interests of the employee or his dependents, liability for compensation may be redeemed, in whole or in part, through payment by the employer of a lump sum which shall be fixed by the Commission, but in no case shall the sum awarded be less than a sum equal to the present value of future compensation payments commuted, computed at four percent true discount compounded annually.

Code 1950, § 65-71; 1968, c. 660, § 65.1-74; 1972, c. 619; 1973, c. 401; 1991, c. 355.

§ 65.2-523. Lump sum payments to trustees.

Whenever the Commission deems it expedient, any lump sum subject to the provisions of § 65.2-522 shall be paid by the employer to some suitable person or corporation appointed by the circuit court in the county or city wherein the accident occurred, or by such other circuit court as may be designated by the Commission as more compatible with the interests and convenience of the beneficiaries, as trustee or guardian, to administer the same for the benefit of the person entitled hereto in the manner provided by the Commission. The receipt of such trustee for the amount as paid shall discharge the employer or anyone else who is liable therefor.

Code 1950, § 65-72; 1968, c. 660, § 65.1-75; 1991, c. 355.

§ 65.2-524. Failure to pay compensation within two weeks after it becomes due.

If any payment is not paid within two weeks after it becomes due, there shall be added to such unpaid compensation an amount equal to 20 percent thereof, unless the Commission finds that any required payment has been made as promptly as practicable and (i) there is good cause outside the control of the employer for the delay or (ii) in the case of a self-insured employer, the employer has issued the required payment to the employee as a part of the next regular payroll after the payment becomes due. No such penalty shall be added, however, to any payment made within two weeks after the expiration of (a) the period in which Commission review may be requested pursuant to § 65.2-705 or (b) the period in which a notice of appeal may be filed pursuant to § 65.2-706. No penalty shall be assessed against the Commonwealth when the Commonwealth has issued a regular payroll payment to the employee in lieu of compensation covering the period of disability. As used in this section, a regular payroll payment issued by the Commonwealth includes payments issued net of deductions for elected and mandatory benefits and other standard deductions.

1970, c. 470, § 65.1-75.1; 1991, c. 355; 1994, c. 248; 1997, c. 383; 1999, c. 782; 2012, c. 270.

§ 65.2-525. Who may receive payment and receipt therefor.

A. Whenever payment of compensation is made to a surviving spouse or parent for his use, or for his use and the use of a minor child, or the use of a minor child and such payments are made in the form of periodic weekly, monthly or quarterly payments, the written receipt thereof of such surviving spouse or parent shall acquit the employer. The Commission, however, may require annual written certifications from the surviving spouse or parent confirming that the portion of such payments for the benefit of the minor child has been used for the benefit of such minor child.

B. Whenever payment is made to any person eighteen years of age or over, the written receipt of such person shall acquit the employer. If a minor shall be entitled to receive a lump sum payment amounting to not more than $15,000 as compensation for injuries, or as a distributive share by virtue of this title, the parent or natural guardian upon whom such minor shall be dependent for support shall be authorized and empowered to receive and give receipt for such moneys to the same extent as a guardian of the person and property of such minor duly appointed by proper court, and the release or discharge of such parent or natural guardian shall be a full and complete discharge of all claims or demands of such minor thereunder.

C. Whenever any lump sum payment greater than $15,000 is due to a minor or to an incapacitated person as defined in § 64.2-2000, the same shall be made to the guardian of the property of such minor or the conservator of such incapacitated adult or, if there is none, to some suitable person or corporation appointed by the circuit court as a trustee, and the receipt of such trustee shall acquit the employer.

Code 1950, § 65-73; 1968, c. 660, § 65.1-76; 1972, c. 825; 1973, c. 401; 1991, c. 355; 1997, c. 921; 1998, c. 94; 2002, c. 301.

§ 65.2-526. Payment to junior dependents in good faith.

Payment of death benefits by an employer in good faith to a dependent subsequent in right to another or other dependents shall protect and discharge the employer unless and until such dependent or dependents prior in right shall have given him notice of his or their claim. In case the employer is in doubt as to the respective rights of rival claimants, he may apply to the Commission to decide between them.

Code 1950, § 65-74; 1968, c. 660, § 65.1-77; 1991, c. 355.

§ 65.2-527. When employee's rights exercised by guardian or trustee.

If an injured employee is incapacitated or is under eighteen years of age at the time when any right or privilege accrues to him under this title, his guardian, trustee or conservator may in his behalf claim and exercise such right or privilege.

Code 1950, § 65-75; 1968, c. 660, § 65.1-78; 1991, c. 355; 1997, c. 801.

§ 65.2-528. Time limitations on persons under disability.

No limitation of time provided in this title for the giving of notice or making claim under this title shall run against any person who is incapacitated or under eighteen years of age, so long as he has no guardian, trustee, or conservator.

Code 1950, § 65-76; 1968, c. 660, § 65.1-79; 1991, c. 355; 1997, c. 801.

§ 65.2-529. Joint service.

Whenever any employee for whose injury or death compensation is payable under this title shall at the time of the injury be in the joint service of two or more employers subject to this title, such employers shall contribute to the payment of such compensation in proportion to their wage liability to such employee. However, nothing in this section shall prevent any reasonable arrangement between such employers for a different distribution as between themselves of the ultimate burden of compensation.

Code 1950, § 65-77; 1968, c. 660, § 65.1-80; 1991, c. 355.

§ 65.2-530. Preferences and priorities.

All rights of compensation granted by this title shall have the same preference or priority for the whole thereof against the assets of the employer as is allowed by law for any unpaid wages for labor.

Code 1950, § 65-78; 1968, c. 660, § 65.1-81; 1991, c. 355.

§ 65.2-531. Assignments of compensation; exemption from creditors' claims.

A. No claim for compensation under this title shall be assignable. All compensation and claims therefor shall be exempt from all claims of creditors, even if the compensation is used for purchase of shares in a credit union, or deposited into an account with a financial institution or other organization accepting deposits and is thereby commingled with other funds. However, benefits paid in compensation or in compromise of a claim for compensation under this title shall be subject to claims for spousal and child support subject to the same exemptions allowed for earnings in § 34-29.

B. Upon an order of garnishment, attachment or other levy addressed to a financial institution in which the principal defendant claims to have exempt funds hereunder, the principal defendant may file an answer asserting the exemption hereunder. From the time of service of such garnishment, attachment or levy, the financial institution, until further order of the court, shall hold the amount subject to such garnishment, attachment or levy, or such lesser amount or sum as it may have, which amount shall be set forth in its answer. It shall hold such amount free of any person drawing against such funds whether by check against such account or otherwise. The financial institution shall be subject to such further order or subpoena for discovery of its records, for which it shall be entitled an order or agreement for compensation for the expense of such service, and in a case deemed appropriate to the court by such an order directing deposit of funds or further security prior to such records being ordered produced.

Code 1950, § 65-79; 1968, c. 660, § 65.1-82; 1987, c. 331; 1990, c. 747; 1991, c. 355; 1997, cc. 796, 895.