On September 6, 2017 the Virginia Workers’ Compensation Commission issued its opinion in Younger v. Virginia Lutheran Home Inc., Jurisdiction Claim No. VA00001061625 (Sept. 6, 2017). This is a good decision for injured workers in Virginia. It affirms that there are some exceptions to an injured worker’s duty to market and look for work within his or her light duty restrictions.


In Younger the claimant, a licensed practical nurse, alleged injuries to her groin, right shoulder, lower right leg, right foot, and right ankle when she tried to avoid a client who had lost control of a motorized scooter. She sought a lifetime Award of medical benefits for her injuries and a period of temporary total disability benefits from May 5, 2015 through August 10, 2015, the dates she was out of work.


At the workers compensation hearing the employer and its insurance company agreed that the claimant suffered a right ankle injury by accident but disputed the extent of injury and the extent of disability. The defendants also asserted that the claimant failed to market her residual capacity according to the Commission’s Guidelines on Looking for Light Duty Work.


The claimant testified that she believed she was restricted to light duty work from May 5, 2015 through August 10, 2015. She further testified that her doctor said she could do light duty work but that he did not want her to stand or put a lot of pressure on the ankle. The employer was unable to accommodate these restrictions and the claimant sought wage loss compensation for the period she was out of work.


At the time of her injury the claimant had another full time job as a receptionist at the VA Medical Center, which she understood she could continue doing. But she was unable to perform her job as a LPN because of the walking required in that position. She testified that she looked for five jobs during the period of wage loss benefits sought, all within the Veterans Administration system. She returned to her LPN job in August 2015.


The medical evidence established that the claimant had light duty restrictions only for the periods of June 14, 2015 through June 20, 2015 and July 12, 2015 through August 8, 2015. The deputy commissioner held the initial one-week period was too brief to trigger a job search obligation and awarded benefits for that period. He likewise awarded benefits for the second period, finding that the claimant was not required to market because the period was brief, the claimant anticipated and id in fact return to her pre-injury employer, and the employer refused to accommodate the claimant’s light duty work restrictions.


The deputy commissioner also found that the claimant proved injuries to her right foot, groin, right shoulder, and right calf and entered an award for lifetime medical benefits for those work injuries.


The defendants appealed the deputy commissioner’s decision. They conceded that the claimant proved partial disability for two limited periods and that there is an exception to the duty to market when the disability is short, the claimant expects to return to work quickly, and the employer has failed to provide light duty. They argued, however, that the claimant had a marketing duty triggered by the length of time she sought payment of wage loss benefits – 98 days. And that she owed “a duty to market her residual capacity for the duration” irrespective of the period of disability proven and awarded.


On appeal the full Workers’ Compensation Commission rejected the defendants’ argument. It noted that the defendants cited “no authority for the proposition that the test for whether a marketing duty exists is the period the claimant believed she was partially disabled and for which she sought the payment of benefits … We can divine no rationale or wisdom in predicating the denial of compensation during proven periods of disability because the claimant failed to market during periods she proved no disability.” The full Commission affirmed the deputy commissioner’s decision.


Take-Away Points from Younger v. Virginia Lutheran Home Inc.


There are two take-away points from the Commission’s decision in Younger.


First, you must have written documentation of work restrictions. No matter how credible and trustworthy you are, the Commission will usually find that you are disabled only if there is written documentation from a medical provider. This is why it’s so important to get a work status note after every appointment and to provide a copy to your work injury attorney.


Second, you should always conduct a job search if you are out of work for more than one week. Though there are some exceptions to an injured worker’s duty to market under the Virginia Workers’ Compensation Act, you will have a stronger case if you look for work within your light duty restrictions.


Have a question about workers compensation in Virginia? Need help filing a claim? Contact Corey Pollard today. We have helped injured workers just like you obtain award agreements and lump sum workers compensation settlements. And if you’re unable to return to work because of your industrial accident or occupational disease, we’ll serve as your Social Security Disability lawyer so that you can get all the benefits you deserve.

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