DUTY TO MARKET

DUTY TO MARKET AFTER ACCEPTING LIGHT DUTY WORK

CVS #1549 and GAB Robins North American, Inc. v. Plunkett, Va. App., Record No. 1071-10-2 (December 21, 2010).

The Virginia Court of Appeals reversed the Commission’s denial of the Employer’s change-in-condition application and award of temporary partial disability compensation benefits to the Claimant. Claimant sustained a compensable injury to her right elbow and left arm on January 30, 2007, while employed as a full-time pharmacy services associate, and was subsequently awarded temporary total disability benefits. On April 14, 2008, Claimant’s treating physician released her to light-duty work with lifting restrictions. On September 24, 2008, the Employer offered the Claimant a position as a part-time pharmacy associate. Claimant contacted the store manager as instructed and informed him that she was available to work “twenty [hours] or less,” and that she would need to leave every day at 4:00 p.m and could not work nights. Claimant returned to work for the employer as a pharmacy associate, averaging fifteen hours a week, beginning October 22, 2008. On November 13, 2008, the Employer filed a change-in-condition application to terminate Claimant’s benefits effective October 22, 2008.

At the hearing, the Employer argued that the claimant was not entitled to temporary partial disability benefits because she failed to market her residual work capacity and the wage loss resulted from her self-limitation of her work hours. Claimant argued that by accepting the only job offered to her by her pre-injury employer, she had no duty to market her residual work capacity. The Deputy Commissioner awarded the claimant benefits and held that the Claimant was justified in seeking a return to work because of the specific offer of part-time employment given to her and therefore, she did not need to market her residual work capacity. The Commission, with one dissent, affirmed the Deputy Commissioner’s award and in so doing, it distinguished the case from Favinger, concluding that Favinger dealt with an employee’s entitlement to temporary partial disability benefits for overtime hours. The Commission noted that in the present case, the Employer had full-time work within Claimant’s restrictions, but restricted the hours and type of work and held that where a pre-injury employer offers selective employment that does not encompass all of the employee’s residual capacity, their acceptance of the position should evidence a good faith effort to market their residual work capacity where the employer does not offer additional work or hours.

On appeal, the Court of Appeals reversed and held that Favinger does apply to this claim and that the Employer had a duty to market her residual work capacity. Claimant accepted the only position offered by the employer which was a position consistent with her post-injury work restrictions and her self-limited hours of availability. The fact that the claimant accepted a light duty position and was willing to work more hours, did not negate the requirement that she make a reasonable effort to market her residual work capacity.

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