What Is a ‘Good Faith Search’ for Light Duty Work?

Let’s say you were a janitor at an office complex who slipped, fell and injured your back while on the job. Even though your injury prevents you from doing the work you did before, there may be other “light duty work” that you can do.

For example, you may no longer be able to mop floors, move heavy furniture or climb ladders to repair light fixtures. However, you may be able to handle supplies and equipment orders or to supervise a work crew.

Many injured workers who find themselves in this position wonder if they can collect Virginia workers’ compensation benefits while they are looking for suitable light duty work.

The short answer is, “Yes.” However, like many aspects of Virginia workers’ compensation law, the complete answer is a little more nuanced and will depend on the unique facts and circumstances in your case. Let’s take a closer look.

Eligibility for Temporary Total Disability Benefits

Generally, if you are totally disabled and cannot work due to a job injury, you may be eligible to receive up to two-thirds (66 2/3 percent) of your average weekly wages. You can receive these benefits during your period of total disability.

These are called “temporary total disability benefits.” They are restricted in two major ways:

• First, your weekly compensation rate cannot exceed the maximum rate established each year by the Virginia Workers’ Compensation Commission. Earlier this month, the Commission set that rate at $967 per week for 2014.
• Second, you cannot receive these benefits beyond 500 weeks from the date of your injury unless you are deemed to be eligible for “permanent total disability benefits.”

So, what happens if you are only “partially disabled,” meaning that a doctor determines that you cannot do your regular job, but you are released by the doctor to do light duty work?

Typically, you will need to look for work that you can do within your limitations. As long as you are making a “good faith search” for such employment, you should be able to continue receiving temporary total disability benefits until you find an appropriate job.

Follow the Commission’s Guidelines

It is common for employers or their workers’ compensation insurers to try to get out of paying workers’ compensation benefits by arguing that a worker has failed to “reasonably market his or her residual work capacity.”

In other words, the employer may argue that you are simply going through the motions and not making a serious or “good faith search” for work.

If this becomes an issue in your case, and it goes before the Commission, you can expect the Commission to look at several factors, including:

• Nature and extent of your disability
• Your training, age, experience and education
• Nature and extent of your actual job search efforts
• Availability of suitable jobs for you in your area.

Keep in mind that the burden will fall on you (and your attorney) to show that you have been making a reasonable effort to find work that will accommodate your disability-related restrictions.

This is why, from the outset of your job search, you should follow the Commission’s “Guidelines on Looking for Light Duty Work.” As long as you follow these guidelines, you should have solid evidence in your favor if your right to benefits is ever challenged by your past employer.

For example, you should:

• Register with the Virginia Employment Commission (VEC) shortly after you are released to light duty work
• Contact your past employer to see if they have light duty work for you
• Directly contact at least five potential employers each week
• Look for jobs that you could reasonably perform given your disability (if you can no longer do physical work, for instance, then look for a desk job)
• Keep a record of your search that documents the names of employers you have contacted, where they are located, the date you contacted them and the result of the contact (for example, you were told that no job was available or the employer said it would call you back).

According to these guidelines, you can focus on finding a job that suits your particular skills. However, if a “reasonable amount of time” passes, and you still cannot find work, you should expand your search to other types of jobs.

Also, if you find a job that pays “substantially less” than what you earned before, you are required to keep looking for one that will pay more.

While following these guidelines is helpful, they are not mandatory. Even if you have not taken all of the above steps – for example, you did not register with the VEC – you may still be able to show that your job search was done in good faith.

If you are facing a challenge to your right to temporary total disability benefits, a Richmond workers compensation attorney at Geoff McDonald & Associates can carefully review your case and help you to protect your rights.