4.8 Subsequent Injuries and the Second Injury Fund

• Library: Workers' Compensation Practice in Virginia (Virginia CLE) (2020 Ed.)

4.8 SUBSEQUENT INJURIES AND THE SECOND INJURY FUND

4.801 In General. The problem of an employee who sustains a second compensable injury after suffering a previous accident resulting in partial disability is discussed in several different sections of the Act.

4.802 Type of Injury and Employment.

A. Second Injury in Different Employment. Section 65.2-505(A) of the Virginia Code is commonly referred to as an apportionment statute. It provides that when an employee has an existing permanent disability that is not the result of a compensable injury sustained during the present employment, the employee is entitled to compensation for a subsequent permanent injury only for the degree of incapacity that would have

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resulted from the later accident if the earlier disability or injury had not existed. ³⁷³

B. Second Injury in Same Employment.

1. In General. Sections 65.2-506 and 65.2-507 describe the compensation benefits available when an employee who already is receiving compensation suffers a second compensable injury in the same employment.

2. Specific Loss and Total or Partial Incapacity. If the compensation benefits being received for the first accident are for specific loss under Section 65.2-503 and the second accident results in total or partial incapacity to work, the benefits under the first injury are suspended for the period during which compensation for the second injury is being paid.

After payments for the second injury are exhausted, the payments for the first injury are resumed and continued until the entire amount originally awarded has been paid. For instance, an employee who was receiving benefits under Section 65.2-503 sustained a second injury resulting in temporary total disability. The benefits for the previous injury were suspended during the period of temporary total disability and were resumed after the period ended. After those payments were exhausted, compensation for specific loss due to the second injury resumed. ³⁷⁴

3. Partial and Total Incapacity. If the compensation being received at the time of the second accident is for partial incapacity to work under section 65.2-502, no compensation for the first accident is payable while compensation is being received for the second accident. However, if the employee is receiving compensation for partial incapacity to work under section 65.2-502

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and the second injury results in total incapacity under section 65.2-500, compensation is payable for total...