Virginia: Light-Duty Employee Entitled to Disability Benefits During Furlough Periods

Where a construction worker returned to light duty after a work-related accident but due to “the vagaries of the construction industry,” his employer furloughed virtually all its employees for undefined periods of time, with the expectation that the employees would be hired anew once additional contracts were signs and permits obtained, the injured worker was entitled to workers’ compensation benefits during the furlough periods, indicated a Virginia appellate court.  Quoting Larson’s Workers’ Compensation Law, the court acknowledged the basic rule that the loss of employment income should not be deemed due to disability if a worker without the disability would lose employment or suffer a reduction in earnings under the same economic conditions, the court stressed that the instant case was somewhat unusual.  Here there were repeated furloughs that were irregular in length and unscheduled by the employer.  The court stressed that with a short furlough of a defined duration, the employees, whether on selective employment or not, have little reason to seek employment elsewhere.  With recurring furloughs of an undefined duration, however, the injured employee was placed at a disadvantage in seeking alternative employment, not only because his capacity to work had been reduced due to a work-related injury, but also because Va. Code Ann. § 65.2-510 constrained him as a practical matter to return to selective employment when it resumed. Based on these factors, the employee was entitled to benefits.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Carr v. Atkinson/Clark/Shea, 2014 Va. App. LEXIS 132 (Apr. 8, 2014)  [2014 Va. App. LEXIS 132 (Apr. 8, 2014)]

See generally Larson’s Workers’ Compensation Law, § 84.03 [84.03]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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