If I go back to work after my injury will this hurt my claim?
When a person suffers injury, then more often than not their capacity to perform their work duties is affected. Some people just cannot return to their usual work duties as a result. Others may be able to return to work, but they struggle to perform their normal work duties, or are limited in the work duties they can perform or in the hours of work they can undertake, because of their injuries.
The law says you should "mitigate your loss"
What the law says is that where you suffer injury and it affects your capacity for work, you have a duty to try to find work and undertake work suitable to your injuries to the best of your ability. This is called "mitigating your loss".
The law says that a person should mitigate their loss as much as is reasonably possible. What this means is, a person should take all reasonable steps to try to reduce the loss they suffer as a result of an injury for which they are suing and seeking compensation. This includes trying to return to some form of suitable work if possible.
If you bring a claim for an injury, and the Court considers that you have not taken reasonable steps to try to reduce your loss by obtaining suitable work, then the Court can decide to reduce your compensation on the grounds that you have not "mitigated your loss".
Courts don't respond well to "malingering"
A Court does not like to see that a Plaintiff has not tried or is not trying to reduce their loss caused by their injury - this has a term in personal injury claims and it is called "malingering". If a Court considers that, on the evidence placed before it, a Plaintiff appears to be malingering, then this can go very badly for a Plaintiff not only in respect to the damages awarded to them for their injuries and resultant loss and damage, but it can even impact upon a Court's perception of the Plaintiff's trustworthiness as to to how the injury occurred, and the extent of their injuries.
In other words, it can affect a Plaintiff's "credit" as to whether their evidence is reliable and can be trusted. For example, a plumber suffers an injury to his leg when he falls from a defective ladder whilst undertaking his work duties.
As a result the plumber is no longer able to do his job where he is required to continually climb up and down ladders and get into trenches etc. due to his injury. However, medical experts say that despite his leg injury, the plumber can still work.
They say he should still be able to undertake work where he is not required to undertake such tasks as climbing up ladders or into trenches. For example, he could teach plumbing at a TAFE College or he could work part time in a hardware store advising customers on their plumbing needs or he could work in a more sedentary job such as in a Call Centre or in an administrative role.
Then a Court will expect that the plumber should try to find this type of suitable employment and then make every effort to maintain that employment.
Failed attempts to return to work because of injury are the best evidence of loss of employability and earning capacity
If the plumber cannot find suitable work with his injury, despite his valid attempts to do so, or if he finds work, but his knee injury makes him unreliable and he is put off work or he has to cease work due to his injury, then if this evidence is placed before the Court and accepted, a Court will consider that the plumber has tried to mitigate his damage but he still has not been able to find or maintain work because of his injury.
A Court will then be in a position to award damages appropriate to the loss the plumber has sustained in not being able to find suitable work with his injury, despite his attempts to do so.
A Court will feel it can do this as the worker has proved, by his valid attempts to work, that he has tried to return to some form of employment since his injury but he has not been able to do so because of the limitations placed on his employment by his injury. A Court will also look at those failed attempts to find work as an indicator of the difficulties the plumber will have in finding and maintaining employment in the future when looking at and calculating his award for future economic loss.
However, say the plumber just does not try to return to any form of work after sustaining his injury. Just say the plumber simply sits at home and makes no attempt to apply for jobs or to retrain, or when he does find a job, he does not make a valid attempt to maintain such employment.
Then, in such case, when the plumber's claim goes before a Court, the Judge is likely to consider the plumber has not tried to mitigate his loss and the Court will reduce his compensation and damages as a result. But the worst case scenario in such case is if the Judge considers the plumber's lack of sincerity in trying to mitigate his loss makes it hard for the Judge to accept the plumber as a trustworthy witness.
In such case, the Judge may then question all of the evidence given by the plumber at his trial, even bringing into question the plumber's story as to how his injury occurred. Examples of this can be seen in the recent court decision of Tyrone Alexander Lewis v Green Mountain Food Processing Pty Ltd (2014) QDC 149 and in the case of Williams v Aldi Pty Ltd (2013) QDC 141. If you would like to learn more about these cases, go to the following articles on our website by clicking on the following links:
- Case fails as Plaintiff's evidence found extremely unreliable;
- Surveillance destroys Plaintiff's case
Now a lot of people might think that this is not relevant to their case as they expect to settle their claim before it goes before a Court, so all of the above information does not affect them. This is far from the truth. How an insurer or defendant looks at a claimant's case is on the basis of how a Court will view the claimant's case at trial.
So if an insurer looks at a claimant's case and sees that they are not mitigating their loss, then it will think, a Court is likely to find that this claimant is not mitigating his loss and this may reduce his claim considerably and it may even cause his case to fail and the insurer's offers of settlement will be reduced as a consequence.
The best course to take is to try a return to work
So, if you are injured, the best course advisable is for you to try to return to work. If your injuries stop you from undertaking the work you normally did prior to your injury occurring, then you should try to find work more suitable to your injuries.
But you should note that a Court does not expect you to be in pain. If you try to return to work and you are in pain and cannot do your work, then it is quite reasonable for you to stop doing that work that causes you pain.
In some cases, it might be suitable for you to return to your normal employment but on reduced hours or on intermittent days so you have time to recover from any aggravation to your injury from your work duties. In other cases, it may be that you need to retrain into alternate employment more suitable to your injuries, altogether different from your pre-injury employment.
It would be advisable however in such case for you to see your doctor to inform him of your difficulties in performing your work and your need to cease your work or reduce your work hours.
In fact, the best possible course an injured person who has brought a claim can take, is to try to go back to work. If they fail in doing this despite using their best efforts to do so, then this is the best evidence for a Court to see the impact of the injury on that person's employment and employability.
The more a Court sees that you have tried to return to work and you have made every endeavour to keep working but, because of your injuries you just cannot do so, then the more the Court will see how much your injuries have affected your employment, and are likely to continue to affect your employment and employability in the future.
But no one expects you to work in pain
Obviously there are going to be some cases where a person is injured so badly that it is quite readily accepted they cannot return to work with their injuries, or given the circumstances of the individual, they will be unlikely to be able to find work again given their injuries (e.g. where a 62 year old bricklayer injures his back, he is likely to find it extremely difficult to find alternate work).
But in other cases, where a person's injuries do not stop them from being able to do some form of work, then this is when they should attempt to try to locate work suitable to their injuries, and to try to maintain that work as best they can. It is only in cases of very serious injury or debilitating injury that a Court will usually accept an injured person is not able to work at all.
In most cases, a Court will consider an injured person has a "residual earning capacity", and should give their best efforts to achieve that residual earning capacity.
But always remember, when it is said that you are to mitigate your loss and try to return to work in suitable employment, you are not expected to undertake work if it causes you pain. And if you do return to work, and you find you cannot continue with the work as it aggravates your injuries, or you need to reduce your work hours because you can no longer work full time hours with your injury.
Then make sure you see your doctor to obtain his confirmation that it is appropriate for you to cease your work or to reduce your work hours, or to restrict your work duties, due to your injuries - this then validates ceasing your work or reducing your work duties or work hours.
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