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When does an injured worker in Virginia have to look for work?

Many injured workers in Virginia are required to search for work

If you cannot do your regular job, but you are able to do light-duty work, you must look for a job in order to receive wage loss benefits. In the world of Virginia Worker's Compensation, this is called “marketing your residual work capacity.” Above all, the Workers' Compensation Commission is looking for an honest “good-faith” effort to find a suitable job. If the goal of a job search is only to give the appearance of making an effort, it is inadequate.

How and where should I look for work?

Registering with the Virginia Employment Commission is a good way to get started on a job search. You can also sign up for other employment agencies, and there are many job search websites online. You should fully cooperate with any job search agency and follow up on all the job leads they provide you. You should not limit yourself to looking for work online, but use whatever way is best for the kind of work you are looking for. This can be in-person visits, phone calls, internet, mail, or employment agents such as union hiring halls.

You should directly contact at least five employers per week. These should be employers who are likely to have work available that you are able to perform. You do not have to know for sure that there is available work, but only have a reasonable belief that there might be. You should contact a variety of employers: don't just keep asking the same ones for work over and over again. If the same employer has multiple locations, then feel free to contact the different locations, but make sure to take note of which ones you contact. And be sure to ask your pre-injury employer for light-duty work.

What kind of Jobs should I look for? 

You should look for jobs that you are qualified for. If you have particular job skills, training, or work history in a particular area, then you may focus on those types of jobs. But if some time has passed without finding a job in that field, then you should look for other types of jobs as well. Also, think of any education you have. Many types of jobs are only available to people who have certain degrees or certifications, so you should look for those jobs, if you are still physically capable of doing them. You can also get additional training or certifications that will make more jobs available to you. But this does not take the place of making direct contact with potential employers.

You should look for jobs that you believe you are able to do, considering any work restrictions given by a doctor. If you only look for jobs that you feel you can't physically do, or that you don't have the experience or qualifications for, then your job search will not be “in good faith.” Only tell potential employers about the work restrictions that have been given by your doctor. Don't limit what kind of work you will accept any more than you have to.

If you do find a job, but it pays less than your pre-injury job, then you should keep looking for higher-paying work. And if your pre-injury employer gives you light-duty work, but you can no longer get overtime because of your work restrictions, then you need to look for other work or a part-time job in order to receive wage loss benefits.

How do I document my search? 

Even the best job search won't count for anything if you don't have any record of it. Keep a list of all employer contacts made, whether you actually turned in an application or not. This list should include: (1) the names of employers contacted, (2) where the employer is located, (3) the types of positions sought, (4) the date that contact was made, (5) whether the contact was in person, by phone, or through the internet, and (6) the result of the contact.

How do my work restrictions effect my job search? 

What a diligent job search looks like will be different for everyone. You don't have to make yourself available to work twenty-four hours a day in order to find a job. If you had a night-shift job before your accident, then you can look for night-shift work. For example, if you worked third shift before your injury because you had to take care of a child during the day, you won't be expected to arrange for other childcare in order to take a job with a different schedule. Or if you are a student, you aren't expected to drop out of school in order to take a job. But if you limit the times that you are willing to work without any good reason, then your job search might be found to not be “in good faith.”

You are not expected to move your residence in order to accept a job. If you have limited access to transportation, then look for work that you can actually get to if you get the job. But again, if you limit where you look for work without any good reason, then your job search won't be “in good faith.”

You should not limit the kinds of jobs you will accept. If you get a job offer but turn it down for no other reason than you just don't want to do that kind of work, then your wage loss benefits will be denied. Take the job, but keep looking for work that you would rather do.

In Summary

These are all guidelines; every case is different. The Commission evaluates the quality of each person's job search on a case by case basis. The job search of someone who earned higher wages before his or her injury will look different than that of someone who earned low wages. If you have already gotten part-time work, you job search will look different than someone who has not found anything yet. The jobs in your area that are available to you depends on the kinds of work restrictions that you have, along with what kinds of jobs you are qualified for. This is an increasingly complex area of law. It may be important, and it is often very helpful, to talk to an attorney about your Workers' Compensation claim.

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Sources

Virginia Workers' Compensation Commission, Guidelines on Looking for Light Duty Work, http://vwc.state.va.us/sites/default/files/documents/Marketing-Guidelines_0.pdf

Dollar Tree Stores, Inc. v. Tefft, 69 Va. App. 15, 813 S.E.2d 908 (2018)

Cty. of James Fire Dept. v. Smith, 54 Va. App. 448, 680 S.E.2d 307 (2009)

Ford Motor Co. v. Favinger, 275 Va. 83, 654 S.E.2d 575 (2008)

Allen v. S. Commercial Repair, Inc.,  40 Va. App. 116, 578 S.E.2d 64 (2003)

Stimeling v. Kroger Co., 97 O.I.C. 172-60-53 (June 9, 1997)

Lynchburg Gen. Hosp. v. Spinazzolo, 22 Va. App. 160, 468 S.E.2d 146 (1996)

Falls Church Const. Corp. v. Valle, 21 Va. App. 351, 464 S.E.2d 517 (1995)

Brown v. Tidewater Const. Corp., 19 Va. App. 676, 454 S.E.2d 42 (1995)

Greif Cos. (GENESCO) v. Sipe, 16 Va. App. 709, 434 S.E.2d 314 (1993)

Nat'l Linen Serv. v. McGuinn, 8 Va.App. 267, 380 S.E.2d 31 (1989)

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