Gerald G. Lutkenhaus Workers Compensation Law Blog on Lawyers.com

In Virginia if you are partially disabled you cannot obtain workers’ compensation unless you can show you are making a "reasonable effort" to look for light duty work. In a recent case, the Virginia Court of Appeals reversed an award for a claimant and signaled a last minute job search is not good marketing.

The Court said a firefighter/EMT captain who waited 10 months prior to seeking a job he could perform, and then took a part-time job at much lower pay and failed to present evidence as to what, if any, jobs were available to a person in his circumstances, did not reasonably market his residual work capacity. The Court reversed the firefighter’s workers’ comp award. The Court said there was no bright line test to determine what made a SATISFACTORY JOB SEARCH and reasonableness of effort would be determined on a case-by-case basis.

The last day claimant worked as a captain for employer was July 3, 2006, but he retired under disability on Dec. 31, 2006. In the two week time period before the compensation hearing, claimant sought a job with the county, with a construction firm and went to the VEC once. From the first of 2007 until less than two weeks before the deputy commissioner’s hearing, claimant described his efforts to obtain employment as speaking with "a few here and there just putting feelers out …" He also consulted the newspapers "looking at ads trying to determine what was out there." Thus, while claimant retired from employer under disability Dec. 31, 2006, he only began an earnest effort to find employment some 10 days before the deputy’s hearing of Nov. 14, 2007. I think this meager 10 day effort led to his downfall in this case.

Claimant obtained part-time employment with a sign company one week before the hearing at an average weekly wage of $240.00 per week which was significantly less than his pre-retirement wage of $1,339.65 per week. Because claimant waited over 10 months to actively seek employment, the Court said his own inaction severely limited his ability to reasonably market his residual work capacity. Further, claimant offered no evidence as to what jobs, if any, were available considering his education, training and limitations. He admitted, after accepting the part-time sign assembly job, he sought no further employment for higher pay. He presented no evidence as to why he did not seek employment for the 10-month period prior to November 2007. He produced no evidence that better paying jobs were not available. The Court concluded as a matter of law that claimant did not reasonably market his residual work capacity. Decision of commission for claimant was reversed. County of James City Fire Dept v. Smith (Frank, J.) No. 0225-09-1, (Aug. 4, 2009 Virginia Court of Appeals).

In summary, the claimant in this case was denied benefits because (1) he did not look for light duty employment for a long enough period of time, i.e., 10 days in a 10 month period; (2) he made no showing he had looked for work that paid as much as his salary as a firefighter; and (3) although he found a part time light duty job paying $240.00 per week, he failed to demonstrate he was continuing to look for a better job. If he had only demonstrated a "continuing effort" of looking for a better job, his part time job plus that effort could have preserved his award (even though he did his job search at the last minute).

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Jerry Lutkenhaus has been a practitioner of Workers' Compensation law in the Richmond, VA area for over 35 years. He was given an "AV" rating by Martindale-Hubbell in 2003. Richmond Magazine has listed Mr. Lutkenhaus as one of the best lawyers in central Virginia. There is more information at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com.