Further to our articles about Common Law Damages Claims, e.g how they are calculated ; we thought it very important to highlight that, when it comes to awarding injured workers damages for economic loss, Courts tend to look unfavourably upon injured workers -even those with the tiniest bit of work capacity- who do not, or did not attempt to move on with their life in terms of returning to work. Needless to say that the defendants (workcover insurer lawyers and barristers) will also use any argument possible to demonstrate that you, the injured worker, did “nothing”, or not enough to mitigate your own losses, for example by refusing medical treatment (to some degree) rehabilitation, counseling, vocational assessment(s), seeking employment within your restriction(s), re-training, etc.
Mitigation of Damages: All injured workers are under a legal duty to mitigate their loss
Let’s re-summarise the Common Law
There are two components of common law damages:
Economic loss damages : These are claims for economic loss that generally include the nett current value of lost income and superannuation. These damages are capped by law ( in Victoria: at approximately $1,076,580.00) but this high level will only apply to injured workers who are relatively young with high pre-injury earnings. Complex laws apply to the calculation of economic loss damages.
Pain and suffering damages: These damages are to compensate an injured person for both past and future pain, suffering and distress caused by the injury. The maximum figure payable in Victoria in an extreme case is approximately $500,000.00.
For a quick overview of applicable common law damages in all states and figures (where applicable), see Key Workers’ Compensation Information, Australia 2012
An updated version (July 2013) is available here: Comparison Workers Compensation Arrangements in Australia and NZ – July 2013 which includes the 2012 workcover NSW reforms
Mitigation of Damages explained
This obligation operates in many different ways although the 2 major duties that this imposes on injured persons are as follows:
- An obligation to seek as much rehabilitation as possible in order to demonstrate that you have done everything possible treat your injury (*); and
- To try and find work that is within your capabilities/medical restrictions to mitigate your economic loss-even if you only have a very minimal capacity for work (e.g 1 day a week).
[(*) With regards to “having done everything possible to treat your injury” – it is worth to note that, for example, if an injured worker has undergone let’s say 8 major surgeries to a body part (and they failed) and suffered numerous compilations as a consequence of these surgeries, such as near fatal cardiac arrests, heart failures, etc (as is workcovervictim’s case), and the injured worker requires (or is told that they would need to undergo further) major “salvage” (but high risk) surgery, then the injured worker is not obliged to undergo that surgery and the courts would certainly not look unfavourably upon such an injured worker. It’s about having done what is “reasonable” to treat your injury. We also know of a case whereby an injured worker who had a fairly minor injury (bilateral carpal tunnel) but was of a particular religious belief that prohibited him to undergo surgery – again this injured worker was not looked upon unfavourably, even though he became extremely disabled from a simple and readily treatable injury.]
As far as this means, you , the injured worker, are required to find employment (a job) as the Courts tend to look unfavourably upon injured workers who do not attempt “to move on with their life” in terms of returning to the work, if they have some work capacity (even the smallest).
What can injured workers do?
While many injured workers’ injuries are severe enough that they prevent them from returning to their former or “pre-injury” employment/work, injured workers, who still have some work capacity, basically should attempt to seek some form of employment, be it part time or even casual.
Injured workers should keep a record (i.e. a diary) of ALL the jobs that they have been applying for to demonstrate to the defendants (workcover lawyers) that they are (trying to) mitigate their loss and trying to find employment as this will booster any argument that may be put forth as to the injured worker’s ability to work and to justify a claim for economic loss. We all know how hard it is to find employment once injured, or once having a record of having filed a workcover claim, however, keep job hunting and keep the evidence. The more the better.
If you are unable to find employment, even a casual job that you are capable of doing due to your qualifications or experience (resume) then you should think about what further education you may need to undertake in order to find some type of employment and possibly even take steps to inquire about these options. Try to make a case for retraining with your workcover insurer, if they knock it back, again you will have the evidence that the “defendant” denied you the much needed retraining you believe you need(ed) in order to secure a job!
If the insurer offers you a vocational assessment, and a retraining option (i.e. short course) never say no – because, if you are eligible for a common law case down the track they will use your refusal against you!
The courts often look much more favourably upon an injured worker who attempts to do whatever they can within the means and medical restrictions of their injury/injuries in order to reduce their own loss and damage.
It’s also important you realise that courts do not award settlement sums that provide injured workers with enough money so that they do not have to work again.
That’s a myth! The average compensation payout in Victoria is around $80.000 (eighty thousand). Where does that leave you as an injured worker? Pay off your credit card and accumulated debts, then what? Even assume you’re extremely injured and can never work again, and you receive around 600-800K – where does that leave you? 600K = 10 years at 60K/year or 20 years at 30K per year. Ha! (assuming the 600K is net in your pocket, after your lawyer fees and after you repaid all your weekly payments to workcover!). So, it’s NOT a lottery.
Other injured workers duties
The duty to mitigate your own loss extends into other areas of your workcover claim including the requirement that you, the injured sod, participate in any rehabilitation programs funded by the defendants (insurance company); including counselling with a psychologist or psychiatrist and pain management programs where offered and appropriate.
The defendants (workcover insurance) may organise treatment(s) knowing that they have a duty to provide appropriate rehabilitation to assist injured workers with reaching their “maximum medical improvement” and injured workers will be under an obligation to undergo this treatment to mitigate their loss.
Again, If you – the injured worker- unreasonably refuse to have this treatment then the defendants can argue in court that you are not entitled to certain damages for your refusal to attend treatment and attempt to do as much as possible to improve upon your injuries. Again A Court would not look favourably upon you for failing to do so, and certainly would not award you future counselling, rehabilitation or other medical and like (related) expenses.
Hope this makes some sense.
PS: Some of you, seriously injured workers who are eligible for a common law damages claim with injuries severe enough to score well over 30, 40% WPI may realise that, once assessed and issued with an irrefutable serious injury certificate (i.e >40%) your previously extremely evil insurance company may suddenly turn extremely (sickening) sweet… and start offering you spontaneous “benefits” such as increased home help, approve your surgery in less than 24 hrs, sending you emails asking you “if there is ANYTHING they can do for you to HELP you” etc… Whereas before your % you could not get anything out of them and were treated like the worst criminal on earth… Needless to say why this is happening. It is all part of the big game they are playing, interlinked with the above article. So, do not hesitate to ask for much needed help, for else God knows they may hold it against you…. i.e. you “must have been OK and able to cope with nothing, given you did not ask, or reply to their oh-so-generous offers of help…”
[Post dictated by workcovervictim and manually transcribed and inserted on behalf of workcovervictim]