VIRGINIA. (Enacted 1918; Acts of 1918, Chapter 400; Amended Laws 1920, Chapters 176, 392; Laws 1922, Chapters 425, 427.) I. SCOPE AND APPLICATION. 1. It is compulsory as to the state, municipal corporations, any political subdivisions and employees. It applies to any individual, firm, association and every person, including minors, in the service of another under contract of hire, unless he shall have given notice prior to accident resulting in injury or death that he exempts himself from operation of act. The act does not apply to any common carrier by railroad engaged in interstate commerce, to one whose employment is not in usual course of trade or business of employer, nor to common carriers whose motive power is steam and engaged in intrastate trade, nor is act to be construed to lessen liability of such common carrier for injury or death under statutes, nor to casual employees, farm laborers or domestic servants nor to employees of such persons, nor to any person, firm or private corporation, including public service corporations that has regularly in service less than eleven operatives, unless such employer and employees voluntarily elect to be bound by act. 2. From and after the taking effect of this act, every employer and employee, except as above stated, shall be presumed to have accepted provisions of act to pay and accept compensation for injury or death and shall be bound thereby unless he shall have given notice prior to accident, in writing or print, and shall be given by employer by posting in place of business where employee is employed, or by serving it personally, and by employee by sending it personally to employer or by registered letter, but either employer or employee who has exempted himself may waive such exemption. Every contract of service between employer and employee covered by this act, now in operation or made or implied prior to taking effect of act shall be presumed to have been made subject to act, unless party given notice to other party of exemption from act. 3. No compensation allowed for injury or death due to employee's willful misconduct or due to intoxication or willful failure to use safety appliance or perform duty required by statute or willful breach of rules. 4. Any employer who elects not to operate under act shall not, in any suit at law instituted by employee subject to act for damages for injury or death, be permitted to defend upon any of following grounds: That employee was negligent; injury was caused by negligence of fellow servant, or that employee assumed the risk. Any employee who elects not to operate under act in action for damages for injury or death by accident against employer accepting compensation provisions of act shall proceed at common law, and employer may avail of common-law defenses. Where both employer and employee elect not to operate under act, liability of employer shall be the same as though he alone rejected act and in action by employee, employer shall not avail of common-law defenses. II. COMPENSATION. 1. FOR INJURY RESULTING IN DEATH FROM ACCIDENT WITHIN SIX YEARS: (a) Employer shall pay, subject to provisions of other sections of act, in one of methods hereinafter provided, to dependents of employee wholly dependent upon his earnings a weekly payment equal to 50 per cent of average weekly wages, not more than $12.00 nor less than $5.00 a week for period of 300 weeks from date of injury and burial expenses not exceeding $100.00. (b) If employee leaves only partly dependents, the weekly compensation to be paid as aforesaid shall be equal the same proportion of weekly payments for benefit of persons wholly dependent as amount contributed by employee to such partial dependents bear to annual earnings of deceased at time of his injury. (c) When weekly payments have been made to an injured employee before his death, compensation to dependents shall begin from date of last of such payments, but not continue more than 300 weeks from date of injury. If employee does not leave dependent citizens of, and residing in United States or Canada at time of accident, amount of compensation shall not exceed $1,000.00. (d) The following persons conclusively presumed to be next of kin wholly dependent for support upon deceased employee: (a) a wife upon husband whom she had not voluntarily deserted or abandoned at time of accident; (b) a husband upon wife with whom he lived at time of her accident, if he is then incapable of self-support and actually dependent upon her; (c) a boy under age of 18, or a girl under age of 18 upon a parent. If a child is over age specified above, but mentally or physical incapacitated from earning a livlihood, he or she shall be presumed total dependent. As used in this section, term "boy," "girl," or "child" shall include stepchild, legally adopted children, posthumous children, acknowledged illegitimate children, but shall not include married children; the term "parent" shall include step-parent and parents by adoption. In all other cases question of dependency, in whole or in part, shall be determined in accordance with the facts as the facts may be at time of accident; but no allowance shall be made for any payments made in lieu of board or lodging or services, and no compensation shall be allowed unless dependency existed for a period of three months or more prior to accident; if there be more than one person wholly dependent, the death benefit shall be divided among them; and if persons partly dependent, if any, shall receive no part thereof; if there is one wholly dependent and more than one partially dependent, the death benefit shall be divided among them according to the relative extent of their dependency. (e) For the purpose of this act the dependence of a widow or widower of deceased employee shall terminate with legal or common-law remarriage, and amount to be received by him or her shall be divided among children or other dependent in proportion in which they are receiving compensation, and the dependence of a child, except physically and mentally incapacitated from earning a living shall terminate with attainment of age of 18 years. (f) If deceased employee leaves no dependents, employer shall pay burial expenses of deceased, not to exceed $100.00. (g) The total compensation payable under this act shall in no case exceed $4,500.00. (h) Payment of compensation. a. Whenever payment is made to widow or widower for her use or for her or his use, and use of child or children, the written receipt thereof of such widow or widower shall acquit the employer. b. Whenever payment is made to any person 18 years of age or over, the written receipt of such person shall acquit employer. In case of infant or minor under 18, is entitled to not more than $300, the father, mother or natural guardian shall be authorized to receive and receipt for such moneys to same extent as guardian appointed by Court. c. Whenever payment of over $300.00 is made to minor under 18 years or to dependent child over 18 years, same shall be made to some suitable person or corporation Court or Judge thereof as trustee. d. Payment of death benefits by employer in good faith subsequent in right of another or other dependents shall protect employer unless such dependents prior in right have give him notice. When employee receives or is entitled to compensation for injury covered by clause "f," subsection 2 of this section, and dies from any other cause than injury for which he was entitled to, compensation payment of unpaid balance shall be made to his statutory distributees dependent upon him for support in lieu of compensation the employee would have been entitled to had he lived. 2. INJURY NOT RESULTING IN DEATH: (a) First aid, medical. For a period not exceeding sixty days after accident, employer shall furnish free such necessary medical attention as nature of injury may require and employer may continue to furnish at his option free an attending physician, unless otherwise ordered by Commission. Refusal to accept such service shall bar compensation during period of refusal. (b) Temporary total disability. No provision. (c) Temporary partial disability. No provision. (d) Partial disability. Except as otherwise provided in clause "f" of this subsection, where incapacity from work, resulting from an injury is partial, the employer shall pay as hereinafter provided to injured employee during such incapacity a weekly compensation equal to 50 per cent of difference between average weekly wages before injury and average weekly wages which he is able to earn thereafter, but not more than $12.00 a week, and in no case shall period covered be greater than 300 weeks from date of injury. In case partial incapacity begins after period of total incapacity, the latter period shall be deducted from maximum period herein allowed for partial incapacity. (e) Disfigurement. No provision. (f) Specific injuries. In cases included in following schedule the incapacity in each case shall be deemed to continue for period specified and compensation so paid for such injury shall be as specified therein, and shall be in lieu of all other compensation, to wit: a. For loss of thumb, 50 per cent of average weekly wages for 60 weeks. b. For loss of first finger, called index finger, 50 per cent of wages during 35 weeks. c. For loss of second finger, 50 per cent of wages during 30 weeks. d. Loss of third finger, 50 per cent of wages during 20 weeks. e. Loss of fourth finger, called little finger, 50 per cent of wages for 15 weeks. f. For loss of first phalange of thumb or any finger considered to be equal to loss of one-half of such thumb or finger, and compensation shall be for one-half of periods of time above specified. g. Loss of more than one phalange shall be considered the loss of entire finger or thumb; provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in schedule for loss of a hand. h. Loss of great toe, 50 per cent of wages for 30 weeks. j. Loss of one of toes other than great toe, 50 per cent of wages during 10 weeks. k. Loss of first phalange of any toe considered equal to loss of one-half of such toe, and compensation onehalf of periods of time above specified. 1. Loss of more than one phalange considered as loss of m. Loss of hand, 50 per cent of wages for 150 weeks. o. For loss of foot, 50 per cent of wages during 125 p. Loss of leg, 50 per cent of wages during 175 weeks. r. The weekly compensation referred to in this section s. In construing the foregoing section the permanent loss of the use of a member shall be equivalent to the loss of such member, and for permanent partial loss or loss of use of a member compensation may be proportionately awarded. (g) Total permanent disability. The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof shall constitute total and permanent incapacity and to be compensated as such. Where incapacity for work resulting from injury is total, employer shall pay to injured employee during such total incapacity a weekly compensation equal to 50 per cent of his average weekly wages, no more than $12.00 nor less than $5.00, and in no case shall period covered by compensation be greater than 500 weeks, nor total compensation exceed $4,500.00. |