• Virginia Workers' Compensation Commission Issues New Guidelines for Claimant's Job Search Effort
  • December 1, 2008 | Author: Cecil H. Creasey
  • Law Firm: Sands Anderson Marks & Miller, PC - Richmond Office
  • One of the elements of a claimant's burden of proof in a disputed workers' compensation claim is showing that she made a reasonable effort to find work within her medical restrictions.  The Commission employs at least 20 deputy commissioners who preside over evidentiary hearings.  It is probably fair to say that each deputy commissioner applies and interprets the case law differently when it comes to the expectation of what a claimant must show to satisfy this burden.  Thus, it is often very difficult to predict whether a claimant will successfully prove entitlement to temporary total disability benefits. 

    The Full Commission has just issued "guidelines" to use when assessing a claimant's marketing efforts.  Here, below, are the guidelines that the Full Commission has issued.  Of course, there are still a lot of discretionary angles left for any deputy commissioner to apply to any given set of circumstances.  However, it is useful to know the Full Commission appears to be trying to provide a rather uniform approach.



    The following is from the Virginia Workers' Compensation Commission


    The Virginia Workers' Compensation Commission has adopted Guidelines on Looking for Light Duty Employment (Marketing Guidelines).  The goal is to provide guidance to employees and employers with respect to the obligation of a partially disabled worker to seek light duty employment.


    1.         Good faith search for work - An employee who is partially disabled - i.e., unable to perform his or her regular job, but able to perform light duty work - is required to seek light duty work in good faith in order to receive disability benefits if he or she is not on an open award.

    2.        Factors the Commission considers - In deciding whether a partially disabled employee has made a reasonable effort to find suitable light duty employment the Commission considers such factors as: (1) the nature and extent of the disability; (2) the employee's training, age, experience and education; (3) the nature and extent of the job search; (4) the availability of jobs in the area suitable for the employee considering his disability; (5) any other matter affecting the employee's capacity to find suitable employment.

    3.                  Evidence of reasonable effort - It is presumed that in most cases the claimant made a reasonable effort to market residual work capacity when he or she (a) registered with the Virginia Employment Commission within a reasonable time after being released to return to work and (b) directly contacted at least five potential employers per week where the employee has a reasonable basis to believe that there might be a job available that he or she might be able to perform1 and (c) if appropriate, contacted the pre-injury employer for light duty work.

    4.                  Keep a job search record - Information provided by the injured worker about job contacts should be supported by facts, preferably in writing, about the names of the employers contacted; where the employers are located; the date(s) the contact was made; whether the contact was in person, by phone or via internet; and the result of the contact. 

    5.                 Pre-injury skills or experience - Where an injured worker has particular job skills or training, he or she may focus the search on jobs in that field if there are jobs in that field that the employee can reasonably perform. However, if within a reasonable amount of time the search is not successful, the employee must broaden the search beyond that field.

    6.                  Method of Contacting Employers - Employer contacts should be conducted in a manner reasonably suited to the position sought, which in some cases may be personal visits.  In other cases, contacts may be by phone, internet, mail, or through employment agents such as union hiring halls.

    7.                  Attempt to maximize earnings - If the employee locates and takes a job that pays substantially less than his or her pre-injury job, the employee should continue looking for a higher paying job.

    [1] It is not necessary to prescreen or know for certain of the availability of a suitable job.