Decreased income, profitability of business lead to benefits for mover
Case name: Atlas Van Lines v. Kerr, No. 1345-10-4 (Va. Ct. App. 04/12/11, unpublished).
Ruling: In an unpublished decision, the Virginia Court of Appeals held that a mover was entitled to file for temporary partial disability benefits.
What it means: In Virginia, an economic change in condition may change a worker's right to, amount of, or duration of compensation.
A mover suffered compensable injuries to his back and ankle. As a result, he was awarded various periods of temporary total disability benefits, temporary partial disability benefits, and permanent partial disability benefits. After the injury, he continued to work and received specialized care for his injuries. The mover quit his moving business due to decreased profitability and began working for another company. The mover stated his business was not profitable due to higher labor costs and his inability to perform long-distance hauling jobs due to his driving restrictions. The mover sought TTD benefits. The Virginia Court of Appeals held that the mover was entitled to file for TTD benefits.
The employer asserted that the mover failed to prove a change in condition and that he was not entitled to benefits. The court concluded that an economic change could constitute a change in condition. The court explained that it could only consider conditions that changed after its last award of compensation. Evidence showed that the mover's income and profitability of his business decreased, which led to him quitting his business and working for a new employer. The court found an economic change occurred.
The employer argued that the mover failed to make a reasonable effort to market his remaining work capacity because he only contacted nine potential employers during a seven-week period. The court disagreed, stating that only a reasonable effort was required, not a successful effort or the best effort.
The employer also contended that the mover failed to reasonably market his residual work capacity after accepting new employment. The court disagreed. The mover worked the same number of hours after his injury as before his injury. His postinjury work was less lucrative, resulting in a smaller average weekly wage. Also, the mover did not have a set schedule with the new company, so any additional employment would have interfered with his job.
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June 13, 2011
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