Duty to mitigate your loss – very important in workcover cases

MitigatingTheDamages

We have written about it many times  (see for example “Mitigation of Damages“), but perhaps it’s time to re-highlight that an injured person who makes a claim for compensation is actually required to take all reasonable steps to mitigate his or her loss. So what does this actually mean?

Duty to mitigate your loss – very important in workcover cases

An injured or ill worker who unreasonably fails to reduce (or mitigate) their own loss cannot claim the amount of the loss that could have been avoided by taking reasonable steps to mitigate/minimise their loss. In other words, the injured worker, in order to recover damages in respect of loss that could have been avoided by taking reasonable steps, must take those reasonable steps. If he or she does not, the amount ($) of the claim will be reduced by the amount of the loss that could have been avoided….Sounds complicated? It’s not.

It actually means that if you have been injured or made ill at work, you should honestly try to minimise your own losses (in particular loss of earnings, and even loss of body function). This means that if you can show the insurer or a judge for that matter, that you tried really hard to get better and to find an alternative way to earn (some) income, you will be looked upon as a “good, honest person”. Conversely, if you are injured or made ill at work and you for example refuse (or do not bother) reasonable medical treatment (be it psych therapy, surgery, medication etc) and you deliberately do not try to find something you could do (even seriously injured) to earn a living, you will be seen as a “bludger”, even if you are not!

Workcover insurers will try hard to allege a failure to mitigate. For example, if you claim to suffer from severe PTSD, but then do not attend your psychological or psychiatric sessions or do not take your prescibed medication, the insurer will allege that there is “çlearly nothing wrong with you”, or that your claimed injury/illness is not as bad as you state. [ example: defense lawyer: ” …so Mr Injured, you claim to suffer from unmeasurable depression and PTSD… but I see here, from your medical notes that you last attended a psych 18 months ago and that your last prescription for Y was 20 months ago… so surely it can’t be that debilitating, huh?…”]

I personally know of a case where an insurance company has been able to convince a judge that a failure by the injured worker to undergo knee surgery was unreasonable and therefore amounts to a failure to mitigate loss.

However, let’s say you suffer a serious back or neck injury and you refuse spinal surgery because you were told by the surgeon that it is extremely risky, then this argument will be taken into account in deciding what you reasonably should have done. Similar arguments can be made about medication that has unwanted and unpleasant side-effects. So don’t overly panic.

Understandably each case depends on its own facts and merits. If a workcover insurance company can prove that some reasonably straightforward and safe medical treatment would be effective in reducing the injured worker’s suffering, an allegation of failure to mitigate loss could well be made out. However, it is unlikely to be successful if the insurer itself has refused to fund such treatment. (oops!).

It is even more important that you, as the injured worker, can show that you TRIED your hardest to return to some sort of work to mitigate your loss of earnings. For example by re-training (sometimes the insurer will pay for courses etc), and/or seeking completely alternate employment. For example you were a truck driver your whole life, got badly injured and have no other skills (computer, reading, writing etc) but you tried to mitigate your loss of earnings by starting a fishing business teaching people how to fish (because you are good at fishing), even if that were to fail, a judge would look favourable upon you for simply trying hard.

In my own case, I was an intensive care nurse my whole life, after my (catastrophic) injury I re-trained and undertook courses in business management for health care providers, learned Lean Six Sigma (at ANZ!) and became a hospital re-design manager, mainly working out of an office. I continued work for 5 years after my injury and in between 7 or 8 major surgeries… until such a time where my own long standing employer believed I was “too disabled” to continue work, even in an office with various ergonomic aides. The fact that I tried for so long was very favourable to my case. But , and as an important side note, as insurance vultures do, they alleged that if I could “blog”I could work! This blog caused me to be awarded less than I should have, go figure… because I was and am using voice recognition software and ergonomic aides (even cushions) to use my computer with 1 arm, and was deemed way too disabled to hold down my office job. I was also assessed with a whopping 43% total PERMANENT body impairment by the insurer’s IME! So be careful in everything you don’t do or do.

But, it is important to re-emphasise the need for any injured worker to do all s/he can to mitigate loss, either by returning to work if you are physically and psychologically able to do so (even in the smallest capacity), or to receive recommended medical treatment, psych therapy, counselling etc.

The worst advice anyone can give to an injured or ill worker is to refuse to return to work or to refuse to undertake reasonable medical treatment with a view to maximising the $$$$ of the claim.

Not only is doing so dishonest, but it will also give rise to the risk that the workcover insurer will be able successfully to argue that the injured worker’s compensation should be (sometimes drastically) reduced on account of the injured worker’s failure to take reasonable steps to mitigate the loss.

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