Claimant sustained an injury to her right elbow and left arm in January 2007 while working for her employer. The Commission subsequently awarded TPD compensation benefits to the Claimant. In the following year, Claimant's treating physician approved Claimant for light duty work. The work restrictions included that Claimant not lift objects weighing over ten pounds.

On September 24, 2008, the employer sent correspondence to the Claimant offering a part-time position at Claimant's "pre-injury rate." On October 16, 2008, Claimant contacted the employer and responded that she was available for work for twenty hours or less per week. She further explained her own self-imposed restrictions, being that she needed to leave every day to pick up her great-grandson from school at 4 P.M. Additionally, Claimant could not work during the evenings because she had troublesome night vision.

To accommodate the self-imposed work restrictions, employer offered Claimant a position working Mondays, Wednesdays and Fridays from 10 a.m. until 3 p.m. Claimant accepted.

Until this time, Claimant continued to accept TPD compensation benefits. Pursuant to Virginia Code § 65.2-502(A), an employer is required to compensate an employee who suffered a compensable injury and returns to work with partial work capacity "a weekly compensation equal to 66-2/3 percent of the difference between [the] average weekly wages before the injury and average weekly wages which he is able to earn thereafter, but not more than 100% of the average weekly wage." However, in order to continue to receive TPD payments, the employee must demonstrate that she has put forth a reasonable effort to procure suitable work but is unable to market her remaining work capacity. In other words, an employee must present evidence that she has endeavored to obtain work that conforms to her limited physical capacity but has failed to find a job either due to the injury or because no such work is available in the community.

Claimant made no showing of good faith effort to obtain suitable employment. As such, employer filed a change-in-condition application with the Workers' Compensation Commission to terminate Claimant's TPD compensation benefits. The employer argued that Claimant was not entitled to the benefits because she failed to market residual work capacity. The employer further contended that Claimant's lost wages resulted from her self-imposed limitations on her work hours. On the other hand, Claimant argued that she accepted the only job offered to her by her pre-injury employer, thus alleviating her duty to market her residual work capacity. The Deputy Commissioner awarded Claimant TPD compensation, and the Commission affirmed the award.

On appeal to the Court of Appeals of Virginia, the Court rejected Claimant's argument. The Court held that Claimant has the obligation to market her residual work capacity. Accepting the only position offered by the pre-injury employer that is consistent with post-injury working restrictions does not alleviate such duty. Accordingly, the Court reversed the Commission's ruling and held that the Claimant should be denied continuing TPD payments.