Since 2008, the Virginia courts have ruled repeatedly against the injured worker on the issue of “marketing.” Herndon’s injured workers lawyer Doug Landau frequently hears from claimants (and so-called personal injury attorneys) who are baffled by this requirement under Virginia law. What is “marketing” in the context of the Virginia Workers Compensation Act ? It is simply an injured worker’s good faith effort to look for work that they CAN do, despite their injuries or disability. In National Linen Serv. v. McGuinn (Virginia Court of Appeals, 1989), a case I had argued an appeal on, the appellate court discussed a CLAIMANT’S DUTY TO MARKET HIS RESIDUAL CAPACITY:
“Where an employee’s disability is partial, to establish his entitlement to benefits, he must prove that he made a reasonable effort to market his residual work capacity.” In determining whether the employee has met his burden of proof, the [Virginia Workers Compensation] Commission should consider the following:
- (1) the nature and extent of [the] employee’s disability;
- (2) the employee’s training, age, experience, and education;
- (3) the nature and extent of [the] employee’s job search;
- (4) the employee’s intent in conducting his job search;
- (5) the availability of jobs in the area suitable for the employee, considering his disability; and
- (6) any other matter affecting [the] employee’s capacity to find suitable employment.
In posts over the next fortnight, we will discuss these requirements in more detail.