The Importance of Marketing Your Residual Functional Capacity in Workers’ Compensation Case

On Behalf of | May 4, 2021 | Workers' Compensation |

One of the most important benefits in workers’ compensation cases is the “wage” benefit or what is technically known as temporary total disability (TTD) or temporary partial disability (TPD) benefits.  In either situation, whether you have a total disability or a partial disability, the employer has a duty to pay you two thirds of your average weekly wage for up to 500 weeks.  I want to focus right now on temporary partial disability benefits because that is where we saw a lot of workers’ compensation claimants struggle.

Temporary partial disability (TPD) is a situation where a workplace injury has occurred but the employee is not completely unable to work.  The treating doctor has determined that the employee is capable of only performing light work so the employer must provide the employee with a light duty assignment.  The problem occurs when the workplace is such that there are no light duty assignments available for the worker so the worker must remain out of work completely.  In this instance, the employer is still responsible for paying the worker TPD benefits but the employee has certain responsibilities as well.  Under the Virginia Workers’ Compensation act, the duty of an employee under a temporary partial disability is do what is legally known as “market their residual functional capacity” in order to receive their TPD benefits.  So what does it mean to market your residual functional capacity?  This means that the worker must look for a job that they have the functional capacity to perform in order to receive the wage benefit.  In other words, if an employee is put on light duty work by his treating physician and the employer does not have light duty work, then the employee must look for jobs that are light duty or he/she will not be eligible for payments.

This is where we see some of the biggest problems in workers’ compensation cases in that employees do not fully understand this duty to market.  The typical case is where an employee is injured at work and put on light duty by the treating doctor.  The employer then pays the wage benefit so the employee is lulled into a false sense of security.  Typically, the employee plans on returning to the job in a relatively short period of time so they are not looking for other work with light duty job descriptions.  After some time, the employee stops receiving checks and they think it is a mistake or an oversight on the part of the insurance company that has been making the payments.  After 2 or 3 weeks have passed without payment, the worker contacts an attorney and only finds out then that the payments have been stopped deliberately due to the fact that the worker was not marketing.   And, because they are not currently looking for work, they are not entitled to receive TPD payments.

So what do you do if you are on a light duty work restriction?  Under the Virginia Workers’ Compensation Act, if you are on a light duty restriction you MUST begin looking for light duty work.  You do not actually have to get hired but you have to make a good faith effort to look for work.  And, under the Act, good faith is defined by 5 contacts with a potential employer per week.  You must be able to demonstrate your 5 contacts per week by keeping a log with the name of the company along with a contact person at the company with whom you communicated with regarding potential employment.

This may seem somewhat onerous particularly if you will only be out of work on light duty for 6 to 8 weeks.  However, you do not know how long you will be on light duty and the wage benefit is really important for maintaining income while your recover from your injury.  Also, it is important to contact an attorney right away just so that you know what benefits you are entitled to receive along with what your responsibilities may be under the Virginia Workers’ Compensation Act.

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