Whitt & Del Bueno, Attorneys at Law

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To Market Or Not To Market

By Ralph Whitt

Court of Appeals cases clarify claimant’s duty to market

Two recent decisions handed down by the Court of Appeals in cases handled by our firm have clarified, favorably to the employer, the issue of when a claimant has a duty to market, particularly when he has found work on his own working fewer hours and earning less than his regular job.

In James City County v. Smith, the claimant, Smith, was a veteran fire captain who was permanently disabled from his regular job but released to light duty. He waited eight months until the week before the hearing on the claim for compensation before undertaking any “earnest” marketing effort which consisted of a few job searches and going to the VEC once. Smith found a part-time job just before the hearing earning one-sixth of his pre-injury average weekly wage, but did not market thereafter. The Commission awarded ongoing compensation on the basis that Smith’s overall marketing was sufficient and he promised to market in the future.

The Court of Appeals, in a decision published on August 14, 2009, reversed the Commission and found that there was no credible evidence that Smith had reasonably marketed his residual work capacity. The Court reiterated that the mere fact that an employee finds a new job earning substantially less than his regular job, standing alone, is not sufficient proof of reasonably marketing. The claimant must prove more.

The Court looked at several factors in denying the claim for compensation, including the nature and extent of Smith’s disability, his training, age, experience and education, the nature and extent of his job searches, his intent in conducting job searches, and the availability or unavailability of suitable jobs in the area. The Court noted that Smith was earning but a small fraction of his pre-injury wage. The Court further observed that Smith waited until just before the hearing to conduct his alleged marketing, casting doubt on whether his job searches were in “good faith.” The Court also placed on Smith the burden of proving that there was a general lack of jobs in the area suitable for him, given his injuries, his education, experience and age, to explain or justify his lack of marketing, even after finding part-time work on his own. Smith failed to produce any evidence of the kind, and therefore, the Court found that as a matter of law, he had failed to meet his burden of proving his entitlement to compensation.

In Plant Partners v. Pittman, the claimant, Pittman, suffered a hand and wrist injury, and then was released to light duty work after her second surgery for her hand and wrist problems. Pittman looked for, and ultimately found, work within her light duty restrictions about six weeks or so before hearing took place. However, the job Pittman found was only for about twenty hours or so of work per week, and she had no medical restrictions that limited the number of hours she could work per week. Pittman did not present any evidence at hearing of marketing efforts undertaken once she found the part-time job. The deputy Commissioner and the majority of the full Commission concluded that Pittman’s marketing efforts in those regards were sufficient so as to provide her with ongoing temporary partial disability benefits.

However, the Court of Appeals, in an unpublished opinion dated October 6, 2009, reversed the ongoing temporary partial award. The Court found that Pittman failed to present evidence that she attempted to market her residual work capacity after obtaining the part-time job and also did not present any evidence indicating that available jobs within her residual work capacity would have interfered somehow with her part-time job. Therein, the award of ongoing temporary partial disability benefits was error as a matter of law.

Smith and Pittman illustrate that whenever a claimant with residual work capacity files for additional compensation, he has the burden to prove that he has reasonably marketed. This is true whether the claimant is filing for temporary total disability benefits or for temporary partial disability benefits or even for increased temporary partial disability benefits, such as may occur if employer-provided light duty is no longer available. Finding a job on one’s own earning less than the pre-injury average weekly wage is not enough to entitle the claimant to increased compensation; the claimant must either continue “good faith” efforts to market or prove why he cannot or should not reasonably do so.