Released to Light Duty but Your Employer Has No Work? Virginia’s Rule on Marketing Your Residual Work Capacity

If your doctor releases you to light duty and your employer has no work for you, you have to look for a job to get an award of wage loss benefits. Virginia calls that marketing your residual work capacity, and if you do not do it, the insurer will not have to pay you. But if the Workers’ Compensation Commission finds your job search is good enough, you can receive temporary total disability benefits, even though your doctor says you can do some type of work.

This page is about the job search you have to run when nobody has offered you a light-duty job and you have not received an Award Order from the Workers’ Compensation Commission. It is not about turning one down. If your employer actually offered you light duty and you said no, that is a potential refusal of selective employment under § 65.2-510, and that page covers it.

The rule bites hardest when you have no award order guaranteeing payment and no income because you are out of work due to your restrictions. Without an award in place, the insurer has no obligation to send you a check, and the burden of proving every element of your claim – including an adequate job search – rests with you.

Where the duty to market comes from

You will not find it in the statute. Read Va. Code § 65.2-500 and § 65.2-502, and you will see the compensation rates for total and partial incapacity, but nothing about job searches. The duty is judge-made.

The Supreme Court of Virginia stated it in Washington Metropolitan Area Transit Authority v. Harrison, 228 Va. 598, 324 S.E.2d 654 (1985). An employee who is only partially incapacitated and does not have an award of compensation carries “the burden of proving that he [has] made a reasonable effort to procure suitable work but [is] unable to market his remaining work capacity.”

Read that sentence twice, because both halves matter. You have to prove you tried to find work within your restrictions, and you have to prove it didn’t work.

The six factors the Commission applies: National Linen Service v. McGuinn

No magic number of job applications wins. As the Court of Appeals held in Great Atlantic & Pacific Tea Co. v. Bateman, 4 Va. App. 459, 359 S.E.2d 98, 102 (1987): “The employee must obviously exercise reasonable diligence in seeking employment, and what is reasonable in a given case will depend upon all the facts and circumstances.”

The Court of Appeals, however, set out the framework for determining a good-faith job search a couple of years later in National Linen Service v. McGuinn, 8 Va. App. 267, 272-73, 380 S.E.2d 31, 34 (1989), and the Commission still applies it.

The six criteria are as follows, with my comments on what it really means for your case:

The nature and extent of the employee’s disability. The Commission will expect more from an employee restricted to work at the medium exertional level than one restricted to part-time, sedentary work.
The employee’s training, age, experience, and education. An injured worker with an extensive work history and a college degree should apply to a greater range of jobs than someone who does not have a high school diploma or a GED. Similarly, the Commission may follow the Social Security Administration’s (SSA’s) lead and expect more from a younger claimant than an older one. The SSA’s stance is that the older you are, the harder it is to transfer acquired job skills into a new line of work.
The nature and extent of the employee’s job search. Numbers matter more than anything else on this list, but they are not the whole game. The more employers you contact within your restrictions, the more likely the Commission will find your search adequate. The next factor is why contacts alone do not win it.
The employee’s intent in conducting the job search. You must offer proof that you are actually trying to find a light-duty job, not simply going through the motions. For example, evidence that you spend one day per week looking for work online, then do nothing else until the following week, may show that you are doing the bare minimum. In contrast, searching several days per week and following up with employers on submitted applications can help you show a good-faith job search.
The availability of jobs in the area suitable for the employee, considering the disability. If you live in a populated metro area – Richmond, Hampton Roads, Northern Virginia – the Commission will likely expect you to have a more thorough search than if you live in a rural part of the state, where no employer with more than 100 employees is within 60 miles. Here is an example: I once represented an injured employee who moved to another state and lived more than three hours from the nearest town with a population over 10,000. We used that evidence to try to show that his job search could not be as robust as someone who lived in a more populated place.
Any other matter affecting the employee’s capacity to find suitable employment. Here is an example from one of my cases. I represented a claimant who did not have a car. She was able to get to the job where she got hurt because the employer was located on the bus line. After the work injury, she limited her job search to employers on the bus line and within walking distance. The deputy commissioner found that sufficient and awarded benefits.

What a reasonable job search looks like

The Commission publishes Marketing Guidelines, and they are specific. They are the closest thing to a checklist you will get. If you do these things, the Commission will presume you made a reasonable effort to market. But I still recommend doing more.

Register with the Virginia Employment Commission (VEC). The guidelines expect this “within a reasonable time after being released to return to work.” This helps prove marketing because the VEC has its own job search requirements and offers tools to help you market.
Contact at least five potential employers a week. The expectation is direct contact with employers where you have a reasonable basis to believe suitable work might exist. Do not rely solely on job boards like Indeed, contact employers directly. Also, if you have registered with the VEC and use their job search resources, do not stop at two contacts per week. Many injured workers have told me that is all the VEC requires. The Workers’ Compensation Commission, however, requires more.
Go back to your own employer. Ask whether it has light duty within your restrictions, and record the answer. Save any email or text message you receive. Your attorney can argue that the employer should have offered vocational rehabilitation resources, but chose not to.
Record every contact. Names, locations, dates, how you made contact, and what happened. Leave nothing out.
Broaden the search if it is not working. If you have specialized skills, you may start inside your field, but the guidelines expect you to widen the search if it does not succeed within a reasonable time. Not wanting to accept a job you find menial is not an excuse to stop searching if those jobs are within your restrictions. For example, you may not want to work an administrative job if you have spent your entire career in construction. But you should apply to those types of jobs if you are restricted to sedentary work only.
Keep looking if you take a lower-paying job. Accepting work that pays substantially less than your pre-injury job does not end the obligation – even if you work full-time. I do not agree with this; however, the case law is clear: you must keep looking for a better-paying job until you obtain a new award order.

The Commission also publishes a Marketing/Job Search Form for recording all of this. It asks for the company, the contact, the job title, the address, the method, whether there were openings, and the outcome. We send copies to everyone we represent, whether they have an Award Letter or not. If you are not represented, download the form from the Commission’s website and provide every detail that form asks for.

One thing the guidelines do not say, but every deputy commissioner assumes: the jobs you apply for have to be ones you could actually do. Applying for warehouse work with a twenty-pound lifting restriction is generally not a contact that helps you. However, I have had employees credibly testify that they understood the job they applied for was outside their restrictions, but they were hopeful they could get an accommodation.

How long you have to keep looking for work

The duty attaches to the period you are claiming. Under Harrison, you must prove you made a reasonable effort during the time you say you were partially incapacitated and out of work, which means a gap in the log is a gap in the claim.

That is why stopping for a few weeks or looking for work sporadically can cost you money. If you search hard for a month, stop, and then start back up before the hearing, the insurer can argue you deserve nothing for the middle period. And the Commission can agree and award benefits for the weeks you marketed and deny them for the weeks you did not.

The obligation ends when the reason for it ends or if you receive an award for ongoing wage loss benefits. Finding suitable work, returning to full duty without restrictions, or your treating physician disabling you from all work change the analysis, because at that point you are no longer a partially incapacitated worker claiming wage loss.

What fails

The most common failure I see is not enough direct contact with employers. And it’s not even close. A few contacts a week, a handful of online applications over several months, weeks where you don’t record any contacts: these are patterns I see deputy commissioners have a problem with. For most claimants, I treat five employer contacts per week as the floor, not the goal. I prefer closer to 10 to 15, which is doable if you spend an hour or two on marketing each day.

The second failure is subtler, and it catches employees whose pre-injury average weekly wage (AWW) includes overtime hours.

In Ford Motor Co. v. Favinger, 275 Va. 83, 654 S.E.2d 575 (2008), the employee was working light duty and lost overtime he had been earning before the injury. He claimed wage loss from the lost overtime but testified he had not looked for other work.

The Supreme Court reversed the award. Being on light duty and staying available for overtime is not marketing. If you are claiming a wage loss based on overtime hours, you have to show you tried to make up that loss somewhere.

This is another rule I disagree with. Suppose your pre-injury AWW includes 10 hours of overtime per week. I have seen many employers offer light-duty work at the same pre-injury average weekly wage, but not allow employees on light duty to work overtime. Personally, I think it is silly to require a claimant to market the additional 10 hours per week. The odds of finding an employer who will work around the claimant’s full-time schedule are low, and it seems excessive.

Regardless of my thoughts on the matter, you must look for work to make up missed overtime.

Keeping the log

Documents win cases.

Keep a job search log, and record each contact as you make it. Don’t wait until a few days before the hearing to try to remember every employer you contacted.

I also ask the injured workers I represent to send their updated job search logs every two weeks. And I do this for two reasons. First, to show the insurer that you are complying with the Commission’s Guidelines and are likely to win at hearing. This increases the potential settlement value of your workers’ comp case. Second, to make sure your job search is adequate.

What happens when the insurer says you did not market

How this plays out depends entirely on whether you have an award order, which is why that distinction runs through this whole page.

With no award, there is no check to stop. The marketing fight happens when you file your claim and ask the Commission for benefits, and your job search log is part of your case in chief.

That ordering matters more than most injured workers realize. The insurer does not have to prove you failed to market, because it was never your entitlement to lose. You have to prove you marketed, and if the evidence is thin the claim simply fails.

Practically, this means the log you keep in the first month after your release is often worth more than anything your attorney can do later.

Evidence that does not exist cannot be argued into existence at a hearing.

With an award in place, the insurer cannot simply stop paying. It has to file an Employer’s Application and prove its case to the Commission, and that page covers how to fight one. The good news: failure to market your residual work capacity is not grounds for terminating an award.

What this page does not cover

Refusing a light-duty job your employer actually offered is governed by § 65.2-510 and belongs on the selective employment page. The math on what a partial wage loss check actually pays is on the temporary partial disability page. And if the insurer has assigned you a vocational rehabilitation counselor, that is a separate program with its own rules.

Released to light duty with no job to return to?

If your doctor has restricted your work and your employer says it has nothing for you, the job search you do now may decide whether you receive wage-loss benefits later. If you have questions about your obligations or whether your search satisfies the workers’ comp marketing requirements, call me at (804) 251-1620.

Keep reading

• Virginia workers’ compensation: the complete guide

• Temporary partial disability benefits

• Refusing selective employment under § 65.2-510