Injured VA Employee May Not Merely Accept Lowest-Paying Post-Injury Job and Recover Difference in Earnings

A Virginia appellate court recently affirmed a decision by the state's Workers' Compensation Commission that denied temporary partial disability benefits to an injured employee under Va. Code Ann. § 65.2-502, on the basis that he had not presented evidence that he had marketed his residual capacity to work [BMX Techs. v. Ashby, 2020 Va. App. LEXIS 133 (May 5, 2020)]. As a prerequisite to prevailing on his claim for temporary partial disability benefits, the employee had an affirmative duty to present evidence from which the Commission could find that he made a reasonable effort to market his remaining capacity to work or that his injury left him no capacity to market.

Background

Following the employee's work-related injury, the employer had offered three jobs within the employee's limitations. The employee chose the lowest paying of the three because it was a day-shift position. He then sought to recover the difference between his post-injury wages and those he had earned before the injury.

Deputy Commissioner's Findings

Following a hearing, the deputy commissioner found that the employee's failure to take the higher paying jobs was not an unjustified refusal because, by the very nature of offering three jobs, the employee was required to refuse two of them. Nevertheless, despite the fact that the employer had neither pleaded nor raised the issue, the deputy commissioner then sua sponte noted the employee failed to produce evidence that he marketed his residual work capacity and ultimately denied the claim on that basis. Both the employee and the employer appealed. The full Commission affirmed the deputy's decision.

Appellate Court's Decision

On appeal, the court stressed that a partially disabled employee seeking compensation of the wage differential between his new and his old jobs has the burden of proving that he has made a reasonable effort to market his full remaining work capacity. The appellate court said that the employee's argument that he only needed to present evidence on marketing if that issue was raised by his employer as a defense in discovery or at the hearing was without merit. Moreover, allowed the court, the employee was on notice that he needed to present evidence on marketing after the hearing before the deputy commissioner and could have presented such evidence to the full Commission. The court found that because the employee failed to present any evidence on marketing, the Commission's decision was supported by credible evidence.