What is (and what is NOT) “REASONABLE” Marketing Effort by an Injured Worker in Virginia ?

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Herndon Injury Lawyer Doug Landau reminds clients, prospective clients and other attorneys weekly, that in Virginia, an injured employee has a duty to “market” his or her residual work capacity. The law only says that such “marketing efforts” must be “reasonable.” And that is where things get tricky for the unwary…The Full Commission recently ruled against an injured worker who looked for work.But in this 1/29/2008 Virginia Workers Compensation Commission (“VWC”) Opinion, the majority found that he did not look enough. In the Opinion, the full Commission affirmed the Deputy Commissioner’s ruling that the claimant’s submitting of a list of 47 job contacts over the course of approximately 1 month, plus his testimony that such jobs were within his restrictions and limitations, was not sufficient to prove that he had adequately marketed.Specifically, the full Commission stated that “Although the claimant submitted a list of over 47 job contacts, missing from this list is any information from which we can find a good faith effort to market his residual capacity. The list does not contain:dates of contact,action taken,names of contacts,the type of job for which he applied or inquired, andwhether the job fell within his work restrictions.Without this information, the claimant’s evidence of marketing falls short of showing a good faith effort to find work”. Commissioner Diamond of the VWC dissented, stating that “the Commission has neither a required nor a suggested format for documenting a job search.” Disagreeing with the majority of Commissioners, the dissenting opinion noted that she “would not consider perceived inadequacies in documentation to result in ineligibility.”Landau notes that the Virginia Employment Commission (the “V.E.C.”) has in the past required two meetings or interviews per week to receive Unemployment benefits, and so the VWC’s stricter new standard comes as a bit of a shock to the injured workers’ community. Bottom line, keep written records of your marketing efforts, noting dates, names, phone numbers, Company, position, whether the job was within the doctors’ work restrictions or limitations, and the outcome.

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