his residual work capacity. In the case of Ford Motor Company vs. Favinger, (#062620), Justice Cynthia Kinser wrote for the Court and quoted from prior cases the Virginia legal precedent:

In a claim for temporary partial disability, the employee “[has] the burden of proving that he [has] made a reasonable effort to procure suitable work but [is] unable to market his remaining work capacity.”
(“A partially incapacitated employee . . . is not entitled to temporary total disability benefits unless he has made a reasonable effort to market his remaining capacity for work.”); (“A claimant still has the burden of proving his entitlement to benefits, and to do that ‘he [has] the burden of proving that he [has] made a reasonable effort to procure suitable work but was unable to market his remaining work capacity.’ “)
(“As a condition to benefits under the Virginia Workers’ Compensation Act . . . , a partially disabled employee must make a reasonable effort to market his remaining work capacity.”);
[The seminal case of] National Linen Serv. v. McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 33 (1989) stated: (“[A claimant] who seeks compensation of the wage differential between his new and his old jobs has the burden of proving that he has made a reasonable effort to market his full remaining work capacity.”).

There are no fixed guidelines for determining what constitutes a “reasonable effort” by an employee to market residual work capacity. An employee must “exercise reasonable diligence in seeking employment” and the reasonableness of an employee’s effort will be determined on a case by case basis, taking into account “all of the facts and surrounding circumstances.”

Some of the criteria, however, that should be considered include:
(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 summary, an employee “must present ‘some evidence that he [has] engaged in a good faith effort to obtain work within the tolerance of his physical condition’ and has failed to find a job, either due to his injury or because no such work was available in the community.” Super Lawyer Doug Landau points out that this does not require “super-human effort,” but simply reasonable and consistent job search activities. Bringing NO written proof that you have been looking for work within your current physical restrictions can be fatal to your TPD claim. Bringing a marketing log or journal showing daily calls, interviews, e-mail searches for selective duty employment, letters, applications for light duty work, newspaper reviews, etc. can vastly improve your chances of getting wage loss compensation while partially disabled from work.

Bottom line, keep your eyes and ears open for opportunities that you CAN do and keep a record of your efforts to find work within your doctors’ restrictions.