Does an Injured Worker ALWAYS Have to ‘Market’ Their Remaining Physical Abilities Under Virginia Law?

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Injured workers have a legal duty to look for work within their remaining physical abilities when they cannot return to their pre-injury jobs. Similar to the requirements in a personal injury case  (“mitigating damages” ), an injured employee needs to do the best they can to reduce their losses. Under the Virginia Workers Compensation law, failing to market your remaining abilities can be fatal in your case. Doug Landau regularly advises clients that they must look for work as soon as they are released to do so, if not sooner. A failure to look for “light duty” work within your abilities can lead to termination of wage loss benefits. 

When there is a short hiatus from work, whether you are a heavy-lifting construction worker or white collar professional, there may be no duty to market!

A recent case that the ABRAMS LANDAU Workers Compensation team successfully tried addresses this troublesome issue. A young worker had sustained severe burns to her body. After a number of weeks of therapy and healing, she was released to light duty work, with prohibitions against being near extremes of hot or cold. Normally, she would have been expected to market for a light job, but instead, her and the employer both anticipated that she would return to work shortly after the release. The judge wrote, in her fully favorable opinion, as follows:

“A claimant who is released to light-duty work may not wait for her pre-injury employer to offer her work within her restrictions and has the obligation to seek work from other employers in order to demonstrate a reasonable effort to market her residual work capacity. Exceptions are made, however, where the disability period is short and the parties expect the claimant to return to work with the defendant employer, and that employer declines to provide work compatible with the medical restrictions, or where the disability period is too short to expect the claimant to reasonably market the residual capacity. See, e.g., Stevens v. Anheuser Busch Co., VWC File No. 170-15-08 (September 25, 1995) (disability lasted less than four weeks – there was no duty to market); Dalton v. Tultex Corp., 66 O.I.C. 110 (1987) (claimant’s arm was in a sling and disability lasted less than 5 weeks – no duty to market); Graham v. Montgomery Ward Auto Express #1043, VWC File No. 171-72-93 (September 18, 1995) (“The claimant’s attempt to seek alternative work with his employer during his temporary disability constitutes a reasonable effort to market his residual capacity.” Disability lasted two months.); St. Clair v. Kenan Transport Co., 67 O.I.C. 49 (1988) (11-year employee’s marketing efforts held reasonable where the expected period of disability was three weeks, and actual partial disability was five weeks, who inquired regarding the availability of light-duty work with the employer and expected to return to work for the employer).”

Here, we find that the claimant reasonably anticipated a return to her work with the employer within a relatively short period of time. As noted above, the claimant was released to return to her pre-injury work without restriction as of August 10. We also find that the claimant sought appropriate light duty work with the employer and was eventually provided with limited light duty work as of July 27. Given these facts, we find that the claimant was not required to market her residual work capacity prior to July 27 and that she is entitled to wage loss benefits for the alleged period of total disability. 

If you or someone you care for has a similar issue with how to present your case when injured during work, and if there are any questions regarding legal applications please email us at frontdesk@landaulawshop.com or call  (703) 796-9555 right away!