When determining whether a claimant has made a reasonable effort to market, the claimant’s efforts should be compared to those of a “reasonable employee” in the same or similar circumstances seeking suitable employment in good faith.
Just what determines whether a claimant is considered totally disabled or partially disabled. As the earlier discussion has suggested, total or partial incapacity is largely a medical issue. If the doctor instructs the employee not to work, either because the employee is too injured to be able to work or the doctor is waiting on the results of certain diagnostic tests, then the employee is considered totally disabled. See
275 Va. 83, 647 S.E.2d 575 (2008).
In many cases, the claimant’s intention is to return to full-duty employment with the current employer. Until the claimant’s medical restrictions would permit a full-duty release, the inquiry often centers on whether the employer is in a position to offer light-duty work, also referred to as “selective employment,” in the interim. If the employer offers selective employment, the claimant is under a strong obligation to accept it. Where a partially disabled employee was offered selective employment as a cashier, which job met her restrictions, she was not justified in turning down the offer since she was not totally disabled.
The importance of marketing by an employee released to any form of light duty, selective employment, or restricted position, cannot be stressed too strongly. Many otherwise appropriate claims end up being reduced or denied because of a failure to market.