Marketing and Job Search Requirements after a Workplace Injury in Virginia

After an injured employee suffers a workplace accident that is deemed compensable under the Virginia Workers’ Compensation Act, the employer is required to provide the injured employee with medical treatment for those compensable injuries.  The employer must pay for the medical treatment that the injured employee receives for the injury.  As part of this provided medical treatment, the injured employee’s treating physician will continually assess and determine the injured employee’s ability to work.  Sometimes, the treating physician will determine that the injured employee is not capable of returning to work at all.   However, the treating physician may determine that the injured employee is capable of returning to work in a reduced capacity.  This reduced capacity to work is commonly referred to as “light duty” capacity. 

If the treating physician determines that the injured employee is only capable of working in a light duty capacity, the treating physician will assign specific work restrictions to the injured employee.  Those restrictions determine what type of work that the injured employee may perform.  Restrictions can range from the number of hours a day that the injured worker may work to the length of time that the injured worker may sit, stand, or reach during a work day.  The treating physician’s work restrictions may even outline specific types of tasks or movements that the injured worker must avoid. 

If the injured employee is returned to work in a light duty capacity, then the injured employee must look for a light duty job within those light duty restrictions.   Sometimes, an employer may accommodate the injured worker’s light duty restrictions by assigning the injured worker to another department or allowing the injured worker to do a reduced version of his/her full-duty job that conforms to the assigned light duty restrictions.   

However, in the event that the employer does not have a light duty position available for the injured worker or does not offer the employee a light duty position, it is the responsibility of the injured employee to market him/herself for a light duty job that is within the treating physician’s light duty job orders.  Under Virginia law, when an employee is injured on the job but is unable to return to his/her full-time job duties, the injured employee must look for work within his/her new light duty job capabilities in order to continue receiving workers’ compensation benefits.  An injured employee’s active search for a light duty job is referred to as “marketing.”

The following list outlines some of the guidelines that have been provided by the Virginia Workers’ Compensation Commission.  These guidelines are helpful for determining whether an injured employee has proved a sufficient marketing effort in his/her search for a light duty job.

GUIDELINES FOR INJURED EMPLOYEES LOOKING FOR LIGHT DUTY WORK:

1. Good faith search for work - An employee who is partially disabled – i.e., unable to perform his/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 indemnity 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/her 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 injured employee made a reasonable effort to market residual work capacity when he/she (a) registered with the Virginia Employment Commission within a reasonable time after being released to return to some form of 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 perform and (c) if appropriate, contacted the pre-injury employer for light duty work.  Interestingly, it is not necessary for the employee to prescreen or know the certainty of whether a suitable job is available.
4. Keep a job search record – Information provided by the injured employee 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 – When the injured employee has particular job skills or training, he/she may search for 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 – Injured employees should contact potential employers in a manner that is reasonably suited to the position sought.  In some cases, this involves making personal visits. In other cases, contacts may be made by phone, internet, mail, or through employment agents such as union hiring halls.
7. Attempt to maximize earnings - If the injured employee locates and takes a job that pays substantially less than his/her pre-injury job, the employee should continue looking for a higher paying job.

Seek the assistance of a Virginia workers’ compensation attorney to implement these marketing tips and to protect yourself or your business during a workers’ compensation claim.

Kerry Stolz is a Pender & Coward attorney focusing her practice on workers' compensation, insurance defense and civil litigation.

Source: “Marketing Guidelines,” Virginia Workers’ Compensation Commission, 2019.