Whitt & Del Bueno, Attorneys at Law

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Market Value

By Mike Del Bueno

You may recall that Whitt & Del Bueno has had a number of cases over the past couple of years or so involving the issue of marketing by a partially disabled claimant seeking either temporary total or temporary partial disability benefits. Our firm was recently involved in yet another case involving this marketing issue.

In CVS of Virginia, Inc. v. Plunkett, 57 Va. App. 373, 702 S.E.2d 578 (2010), the injured employee suffered compensable injuries when she fell while working. Plunkett was unable to work at all for a period of time thereafter, and by agreement of the parties, Plunkett received an open award for temporary total disability benefits.

However, Plunkett’s treating physician ultimately released her to return to light duty work, but did not place any limitations upon her regarding the number of hours she could work per week. After learning of Plunkett’s release to return to light duty work, CVS offered to Plunkett light duty work that fit within her treating physician’s work restrictions. Plunkett then returned to light duty work with CVS at only fifteen hours per week, based at least in part upon her indication to CVS at that time that she only wanted to work twenty hours per week or less, that she couldn’t work past 4:00 p.m., that she had to pick up her great grandson from school and that she also could not drive at night. Notably, Plunkett had worked full-time, forty hours per week for CVS at the time of her work accident.

CVS filed with the Commission an employer’s application for hearing that sought to suspend/terminate the Commission’s prior award of temporary total disability benefits upon the grounds that Plunkett had returned to light duty work earning varying amounts and that Plunkett self-limited her light duty work hours, which was the proximate cause of any wage loss she may have had at that time. Plunkett then filed with the Commission a change in condition application for hearing seeking temporary partial disability benefits upon her return to light duty work for CVS – the difference between what she earned by working full-time, forty hours per week, at the time of her work accident and what she earned by working only fifteen hours of light duty work per week, thereafter.

CVS’ and Plunkett’s applications for hearing came before a deputy Commissioner. The only issue to be adjudicated was whether Plunkett was entitled to temporary partial disability benefits subsequent to her return to light duty work. CVS contended that Plunkett was not entitled to temporary partial disability benefits because Plunkett self-limited her work hours upon returning to light duty work and because she failed to adequately market her residual or remaining work capacity upon her return to light duty work at approximately fifteen hours per week.

The evidence in the case established that, among other things, Plunkett did not undertake any marketing efforts subsequent to her return to light duty work (fifteen hours per week) for CVS. Notwithstanding, the deputy Commissioner awarded to Plunkett the claimed temporary partial disability benefits, concluding that CVS offered and Plunkett accepted part-time light duty work and that “[g]iven that [Plunkett] returned to work for [CVS], who has the ability and discretion to offer more employment, the Commission concludes that [Plunkett] did not need to market her remaining work capacity” in order to be entitled to temporary partial disability benefits upon returning to work with CVS.

Upon oral argument and review by the full Commission, the majority opinion held that Ford Motor Co. v. Favinger, 275 Va. 83, 654 S.E.2d 575 (2008), cited by CVS as controlling on the issue in controversy, was not applicable and did not require that Plunkett market her residual work capacity upon returning to fifteen hours of light duty work per week for CVS in order to be entitled to the claimed temporary partial disability benefits. The majority concluded that Plunkett’s mere acceptance of the light duty work offered by CVS “shows that she adequately marketed her residual capacity.” The majority relied on a 1996 Court of Appeals of Virginia published opinion and a 1998 Court of Appeals of Virginia unpublished opinion in support for its holding.

The dissenting opinion held that Favinger controlled the outcome and required Plunkett to market her residual work capacity upon returning to light duty work at fifteen hours per week for CVS in order to be awarded temporary partial disability benefits as of that date. The dissenting opinion emphasized language from Favinger which stated that “that the acceptance of light duty work is not, by itself, sufficient to constitute a good faith effort to market residual work capacity.” The dissent held that, as Plunkett failed to submit evidence of marketing efforts conducted subsequent to returning to light duty work, she was not entitled to the claimed temporary partial disability benefits.

However, the Court of Appeals of Virginia, in a published opinion, reversed the full Commission’s majority opinion, holding that Favinger controlled the outcome and required Plunkett to market her residual work capacity (the additional twenty-five hours per week) in order to receive temporary partial disability benefits after returning to light duty work for CVS. As Plunkett did not undertake any marketing efforts in that regard once she returned to light duty work for CVS, she was not entitled to the claimed temporary partial disability benefits.

The Plunkett case is yet another example of the Commission and/or the Virginia courts requiring marketing efforts by a partially disabled employee claiming either temporary total or temporary partial disability benefits. Favinger has set the standard by which the Commission and the Virginia courts are bound, and cases at the Court of Appeals handled by our firm such as Plunkett, Plant Partners v. Pittman and James City County v. Smith have continued the development of this line of marketing cases.