A manufacturer and their workers’ compensation insurer thought that a 60 -year -old injured service technician did not work enough to find an adequate replacement job as required to qualify for the salary loss benefits. Among other things, he did not look online and only contacted five potential employers per week, they complained.

But an attached commissioner of the Compensation Commission of Workers of Virginia (VWCC) approved the lost salaries for the worker, discovering that the man who described himself as “old school” and that he had no computer skills, was sincere, he made An effort in good faith, and adopted a reasonable approach to employment hunting.

A panel of three VWCC members this week affirmed the order of the deputy.

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

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

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 or office work experience.” He graduated from high school in 1982, denied having computer skills and never owned a computer.

Shumate returned to light service work in January 2024, with his employer accommodating his restrictions that did not include raising more than 15 pounds; Without folding, pushing or throwing; and they are allowed to rest every two hours. They paid his regular salary until he was fired at the end of May 2024.

The parties disagree on whether Shumate was entitled to the benefits of salary loss based on how he marketed his residual capacity in the search for a new work.

He began looking for work on May 27, 2024. He testified that he investigated a lot during the week, including calling friends about possible jobs. He also looked at the telephone guide. Every Friday, he called five potential employers and talked to someone in all 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 seek work in industrial maintenance due to heavy work and work involved. Instead, he called the smallest companies that he thought would be better for him with his restrictions because he could “fix anything.” He said he was qualified to supervise that others did maintenance and sought maintenance work, but was open to other jobs.

No position was offered.

After reviewing the evidence, a VWCC deputy was persuaded that despite being successful in obtaining proper job, Shumate’s efforts were reasonable and in good faith:

“It was the consistency of Mr. Shumate, his clear determination convinced him. Week after week, he continued calling possible employers, detailing his experience, asking about a possible job. Not using a computer, baffled online, still tried, trusting mouth and yellow pages, faithfully contacting five businesses every week. Said differently, we find the efforts of Mr. Shumate sincere. In the end, we have a simple and direct man who uses the limited resources available to him, someone who really wants work. ”

After the decision of the attached commissioner, the employer and the insurer requested a VWCC review. They argued that Shumate’s marketing efforts were not reasonable and had no right to salary loss. They pointed out that he only called employers one day per week; Did not use the newspaper or the Internet; It was not registered with the Employment Commission of Virginia up to four months after his search; And none of the potential employers he contacted had work openings. In his opinion, he was “simply doing the motions to seek employment” and, therefore, did not make a “reasonable effort.”

The attached commissioner had recognized the “failures” in the search for employment of Shumate, including the limitation of his search to five contacts per week and pointing only to a type of work, maintenance work. However, the attached commissioner said:

“In the end, Mr. Shumate’s job search was not perfect or successful, but it was reasonable, a consistent and good faith effort to find adequate job. In other words, we certainly have doubts that Shumate was actively looking for mitigating his economic loss, performing a reasonable search given the circumstances presented, trying to replace lost wages. Thus, he met his load. “

In his review of that finding that favors the employee, the VWCC of three members indicated that in determining if the marketing efforts of a claimant are reasonable, he considers factors such as the nature and scope of the claimant’s disability; the training, age, experience and education of the claimant; the nature and scope of the job search; the claimant’s intention to carry out the job search; the availability of adequate works in the area considering disability; and any other matter that affects the claimant’s ability to find adequate job.

After considering those factors, and Shumate’s testimony and the Employment Search record, the VWCC agreed with the deputy commissioner who committed “in a good faith effort to obtain the work within the tolerance of your physical condition. “

The VWCC deferred the credibility findings of the attached commissioner, especially when the evidence showed an intention to find a job in the field in which he has worked for 30 years. It was not unreasonable that the claimant concentrated his marketing efforts in his previous field of employment, the commission said, he added that Shumate did not limit his geographically geographical search.

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

Topics K-12 workers compensation talent