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Claimant’s Own Limits Affected Job Search

A drugstore wins its appeal of an award of partial disability benefits to an employee who hurt her right elbow and left arm; the Court of Appeals says the commission erred in holding claimant had adequately marketed her residual work capacity by taking the only position offered by employer that was consistent with her post-injury work restrictions and her self-limited hours due to family responsibilities and difficulty with night driving.

At a hearing on employer’s change in condition application, employer argued claimant was not entitled to benefits because she failed to market her residual work capacity. Employer contended claimant’s wage loss resulted from the self-limitation she placed on her work hours. Claimant said she was available 20 hours or less per week, and that she needed to leave every day to pick up her great-grandson from school at 4:00 p.m. Claimant also said she could not work nights because she had trouble driving at night due to eye problems.

Claimant argued that, by accepting the only job offered by her pre-injury employer, she had no duty to market her residual work capacity. The commission concluded that ARA Servs. v. Swift, 22 Va.App. 202 (1996), and Falls v. Va. Mennonite Ret., Va.Ct.App. Dec. 22, 1998), controlled its decision.

We agree with employer that Ford Motor Co. v. Favinger, 275 Va. 83 (2008), applies and that claimant had a duty to reasonably market her residual work capacity. She accepted the only position offered by employer, a position consistent with her post-injury work restrictions and her self-limited hours of availability due to family responsibilities and reluctance to drive at night. We conclude the commission erred in denying employer’s change-in-condition application and awarding temporary partial disability compensation benefits to claimant.

Reversed and final judgment for employer.

CVS #1549 v. Plunkett (Felton, J.) No. 1071-10-2, Dec. 21, 2010; Workers’ Comp. Comm’n; Michael P. DelBueno for appellants; Timothy J. Healy for appellee. VLW 010-7-471(UP), 7 pp.

VLW 010-7-471

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