Virginia: Injured Worker Must Show He or She has Reasonably Marketed Residual Work Capacity

An injured worker's acceptance of the lowest paying of three jobs offered to him following his work-related injury, on the basis that it was a day-shift position and the others were not, meant he could not recover the difference between his post-injury earnings and his earnings prior to the injury, held a Virginia appellate court. The worker had an affirmative duty to produce evidence that he had reasonably marketed his residual work capacity. His argument that he needed to come forward with such evidence only if the issue was raised by the employer did not convince the appellate court. Accordingly, the court affirmed a decision denying the worker temporary partial disability benefits.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See BMX Techs. v. Ashby, 2020 Va. App. LEXIS 133 (May 5, 2020)

See generally Larson’s Workers’ Compensation Law, § 81.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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