Duty to Market - A Return to Basics

Looking through the Virginia Workers’ Compensation Act, you won’t find “marketing” or “duty to market” anywhere in the legislated sections of the Act. Instead, this frequently contested topic appears deep in the case notes of §65.2-510, a statutory provision dealing with the claimant’s refusal of employment.  

History

In J.A. Foust Coal Co. v. Messer, 195 VA. 762 (1954), the Supreme Court laid the ground work for the modern marketing rule with this single sentence: “one who has suffered a partial physical disability may obtain total incapacity payments if, because of his disability, he is unable to market his remaining capacity for work.” The consequence of this new rule was that the partially disabled claimant was now obligated to try to market his residual capacity to prove that his reduced capacity prevents him from participating in the labor market.

60 Years of Judicial Opinions on the Issue of Marketing

According to the courts since Messer, the failure to reasonably seek employment amounts to a refusal of employment under §65.2-510, barring benefits for the claimant until he cures his refusal. 

When Does a Claimant Have a Duty to Market?

1. They are released to light duty work and are not presently under an open indemnity award; and
2. The period of light duty is of a long enough duration that the claimant should reasonably have sought work.

WHAT EXACTLY IS A CLAIMANT REQUIRED TO DO?

The Commission has published marketing guidelines.

The guidelines ask the claimant to engage in a “good-faith” search for work and provide evidence of a “reasonable effort.” Probably because the Commission knew that these standards were overly vague, they provided some additional factors to assess if a reasonable effort was made, such as:

1. Scope of the injury/disability;
2. Claimant’s training, age, experience, and education;
3. Scope of the job search;
4. Viability of the job market in the claimant’s geographic area;
5. Registration with the Virginia Employment Commission;
6. Direct contact with five or more potential employers, per week; and
7. Contact with the pre-injury employer for an employment accommodation.

The guidelines and judicial opinions regarding marketing are written in a way that forces a case-by-case analysis. For example, one of the factors listed in the Commission’s guidelines is “any other matter affecting the employee’s capacity to find suitable employment.”

A Failure to Market Defense is a Powerful Defense in Virginia

The last 60 years of judicial opinions have resulted in the ambiguous guidelines and a general lack of clarity. Instead of getting bogged down in nuance of the case law, focus on the basic principle of the defense set forth by the Virginia Supreme Court in Messer. The marketing defense is actually a claim that the claimant has constructively refused employment because their partial disability does not render them unable to secure work in the labor market. If you are left unconvinced by their effort to secure employment within their restrictions then a failure to market defense may be available to limit the scope of indemnity benefits.

Practice Tips

1. Communicate with the claimant and employer – an accommodation by the employer is the easiest way to mitigate wage loss during a period of light duty.
2. Request a written log of the claimant’s marketing efforts – look for variety, quality, and consistency.
3. Keep an eye on the calendar – short periods of disability rarely require marketing.
4. Create a checklist based on the Commission guidelines, but do not apply these rules mechanically! The totality of the claimant’s circumstances will ultimately decide the case.