When I have two jobs, does workers’ comp cover my earnings from both? Many injured workers have part-time jobs to supplement their full-time wages. For instance, it’s quite common for folks to pick up part-time work during the holidays. What happens when they suffer a serious workplace injury on their part-time job that leaves them unable to perform the duties of their full-time job? Does their workers’ compensation claim against the part-time employer cover their lost wages from their main job? The answer is – only if the duties in both jobs are substantially similar.
“When an injured employee is disabled from performing his employment duties, the employee's earnings include the earnings from two or more jobs that are substantially similar.” Creedle Sales Co. v. Edmonds, 24 Va. App. 24, 27, 480 S.E.2d 123, ___ (1997). When performing the ‘substantially similar’ analysis, courts examine “(1) ‘the duties and skills’ of each job, and (2) ‘the primary mission’ of the employee on each job.” Mercy Tidewater Ambulance Serv. v. Carpenter, 29 Va. App. 218, 224, 511 S.E.2d 418, ___ (1999)(quoting County of Frederick Fire & Rescue v. Dodson, 20 Va. App. 440, 444-45, 457 S.E.2d ___ (1995). “In every situation where the commission is asked to determine whether two or more jobs are substantially similar, the commission must consider not only the particular duties of each job, but also the general nature or type of employment of the two jobs.” Creedle Sales, 24 Va. App. at 28, 480 S.E.2d at ___.
So, highly compensated workers who pick up part-time work having nothing in common with their full-time jobs are vulnerable. A serious workplace injury disabling them from their full-time job leaves them with no remedy for the loss of their main income under the Virginia Workers’ Compensation Act.