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.
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.
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.
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:
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.”
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.