‘Old School’ Job Search Benefits Injured Worker in Lost Wages Claim

A manufacturer and its workers compensation insurer thought an injured 60-year old service technician employee did not work hard enough to find a suitable replacement job as required to qualify for wage loss benefits. Among other things, he did not search online and only contacted five potential employers a week, they complained.

But a deputy commissioner of the Virginia Workers Compensation Commission (VWCC) approved the lost wages for the worker, finding that the man who described himself as “old school” and who had no computer skills, was sincere, made a good faith effort, and took a reasonable approach to job hunting.

A three-member panel of the VWCC this week affirmed that deputy’s order.

Mark Shumate was a senior maintenance technician for a manufacturer of electrical control components and systems. He characterized his job as “very hard work” that involved lifting and carrying. On October 27, 2023, he was injured moving pallets.

He sought an award of medical benefits and temporary total disability. The parties agreed he suffered a compensable accident with injuries to his neck, right shoulder, right hand, and right leg and that he was entitled to temporary total disability benefits. .

Shumate had been working for the employer for about two years before the accident. He had worked in the maintenance field for about 30 years. He had no “desk work or office type experience.” He graduated from high school in 1982, denied having computer skills, and never owned a computer.

Shumate returned to light duty work in January 2024, with his employer accommodating his restrictions that included no lifting more than 15 pounds; no bending, pushing, or pulling; and being allowed breaks every two hours. He was paid his regular wages until he got laid off in late May 2024.

The parties came to disagree over whether Shumate was entitled to wage loss benefits based on how he marketed his residual capacity in looking for a new job.

He began looking for a job on May 27, 2024. He testified he did a lot of research during the week, including calling friends about potential jobs. He also looked in the phone book. Every Friday, he called five potential employers and spoke to someone in all of the places he called. While he had worked for his employer in Radford, he extended his job search to seven other communities.

Shumate said he did not look for jobs in industrial maintenance because of the heavy lifting and work involved. Instead, he called smaller businesses he thought would be a better fit for him with his restrictions because he could “fix anything.” He said he was qualified to supervise others doing maintenance work and looked for maintenance work but was open to other jobs.

He was not offered any positions.

After reviewing the evidence, a VWCC deputy was persuaded that despite being unsuccessful in landing a suitable job, Shumate’s efforts were reasonable and in good-faith:

“It was Mr. Shumate’s consistency, his clear determination that convinced us. Week after week, he continued calling on potential employers, detailing his experience, asking about a possible job. Not able to use a computer, baffled by the internet, he still tried, relying on word of mouth and the yellow pages, faithfully contacting five businesses each week. Put differently, we found Mr. Shumate’s efforts sincere. In the end, we have a simple, forthright man using the limited resources available to him, someone truly desiring work.”

After the deputy commissioner’s ruling, the employer and insurer requested a VWCC review. They maintained that Shumate’s marketing efforts were not reasonable and he was not entitled to wage loss benefits. They pointed out that he only called employers one day per week; he did not use the newspaper or internet; he did not register with the Virginia Employment Commission until four months into his search; and none of the potential employers he contacted had job openings. In their view, he was “simply going through the motions of searching for employment” and he therefore did not make a “reasonable effort.”

The deputy commissioner had acknowledged the “flaws” in Shumate’s job search, including limiting his search to five contacts per week and targeting only one type of job, maintenance work. Nonetheless, the deputy commissioner held:

“In the end, Mr. Shumate’s job search was neither perfect nor even successful, but it was reasonable—a consistent, good-faith effort to find suitable work. Put another way, we have no doubt Mr. Shumate was actively, genuinely looking to mitigate his economic loss, conducting a reasonable search given the circumstances presented, trying to replace lost wages. Thus, he met his burden.”

In its review of that finding favoring the employee, the three-member VWCC noted that when determining if a claimant’s marketing efforts are reasonable, it considers factors such as the nature and extent of the claimant’s disability; the claimant’s training, age, experience, and education; the nature and extent of the job search; the claimant’s intent in conducting the job search; the availability of suitable jobs in the area considering the disability; and any other matters affecting the claimant’s capacity to find suitable employment.

After considering those factors, and Shumate’s testimony and job search log, the VWCC agreed with the deputy commissioner that Shumate “engaged in a good faith effort to obtain work within the tolerance of his physical condition.”

The VWCC deferred to the deputy commissioner’s credibility findings, especially where the evidence evinced an intent to find a job in the field in which he has worked for 30 years. It was not unreasonable for the claimant to concentrate his marketing efforts in his previous field of employment, the commission noted, adding that Shumate did not limit his job search geographically.

The employer has the right to appeal the decision to the Court of Appeals of Virginia.

Topics Workers' Compensation Talent K-12