If I go back to work after my injury will this hurt my claim?

Should I try to go back to work if I'm injured?

If you’ve been injured, work duties, the hours you can work, and what you can do can be challenging.

Some cannot return to work duties, yet some can and appear ‘stoic’, but truthfully most just struggle on. That is simply no way to live or work.

If you can’t go back to the work you were doing prior to the accident, you have a duty to engage in alternate work, or reduced hours of work, if you can in order to ‘mitigate your loss’.

We’ve helped a lot of clients like you with work injuries and we are here to help.

We’ve provided self help FAQ’s and more information below on this complex subject, but again if you need more help, you’re welcome to chat, call or email, there is no cost to discuss your claim, nor any obligation.

Can I get work accident injury compensation?

Frequently asked questions about returning to work after an injury

Mitigating your loss as much as is reasonably possible or the Court can decide to reduce your compensation.

The law says that a person must mitigate their loss as much as is reasonably possible.

What this means is that a person must 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, such as by obtaining suitable work, then the Court can decide to reduce your compensation on the grounds that you have failed to “mitigate your loss”.

A Court does not like to see that a Plaintiff has not sought to reduce the losses caused by their injury.

This has a term in personal injury claims, and 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 can malingering directly affect the damages awarded for injuries and resultant loss and damage, malingering can also 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, malingering can affect a Plaintiff’s “credit”, namely whether their evidence is reliable and can be trusted.

For example, a plumber suffers an injury to their leg when they fall from a defective ladder whilst undertaking work duties.

As a result, the plumber is no longer able to do their job where they are required to continually climb up and down ladders and get into trenches etc.

However, medical specialists say that despite the leg injury, the plumber can still work. The medical specialists say the plumber should still be able to undertake work where they are not required to undertake such tasks as climbing ladders or into trenches.

For example, the plumber could teach plumbing at TAFE, or they could work part time in a hardware store advising customers on their plumbing needs. Alternatively, they 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. If not, the plumber may be found to have failed to mitigate their loss and/or malingering.

We’ll continue on with our plumber example in the next question and answer…

Continuing from the last question, if the plumber cannot find suitable work with their injury:

despite their valid attempts to do so; or if they find work, but their injury makes them unreliable; or they are put off work, or they have to cease work due to their injury; Then if this evidence is placed before the Court and accepted, a Court will consider that the plumber has tried to mitigate their loss.

However, if the plumber still has not been able to find or maintain work because of their injury, this changes the position.

The 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.

In short, failed attempts to return to work because of an injury are the best evidence of loss of employability and earning capacity

A Court is more likely to feel it can make an award for past and/or future economic loss if the worker has proved, by their valid attempts to work, that they have tried to return to some form of employment since their injury, but have not been able to do obtain work because of the limitations placed on their employment by their injury.

Continuing from the our plumber example used in the last few questions…

Yes, a Court will also look at 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, let’s say the plumber simply does not try to return to any form of work after sustaining their injury. Let’s say the plumber simply sits at home and makes no attempt to apply for jobs, or to retrain, or when they do find a job, they do not make a valid attempt to maintain such employment…

We’ll continue on with our plumber example in the next question and answer…

Continuing from the last question…

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 their loss.

The Court will reduce the compensation and damages as a result.

We’ll continue on with our plumber example in the next question and answer…

Continuing from the last question…

The worst case scenario in this example is if the Judge considers the plumber lacks sincerity in trying to mitigate their loss.

This makes it hard for the Judge to accept the plumber as a trustworthy witness.

The Judge may then question all of the evidence given by the plumber at their trial, even bringing into question the plumber’s story as to how his or her injury occurred.

Examples of this can be seen in court decisions such as Tyrone Alexander Lewis v Green Mountain Food Processing Pty Ltd (2014) QDC 149 and Williams v Aldi Pty Ltd (2013) QDC 141.

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 or her of your difficulties in performing your work, and your need to cease your work or reduce your work hours.

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A lot of people might think that a Judge’s assessment is not relevant to their case, as they expect their claim to settle before it goes to Court.

They may believe that all of the above information and examples we’ve shared in above questions and answers may not affect them – however 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.

An insurer looks at a claimant’s case and sees that they are not mitigating their loss, then the insurer / defendant will think:

A Court is likely to find that the claimant is not mitigating his or her loss; This may reduce their claim considerably; It may even cause their case to fail; The insurer’s offers of settlement will be reduced as a consequence.

An insurer looks at a claimant’s case and sees that they are not mitigating their loss, then the insurer / defendant will think:

A Court is likely to find that the claimant is not mitigating his or her loss; This may reduce their claim considerably; It may even cause their case to fail; The insurer’s offers of settlement will be reduced as a consequence.

No, if you try to return to work and you are in significant pain and cannot do your work, then it is quite reasonable for you to stop doing that work that causes you significant pain.

In some cases, it might be suitable for you to return to your normal employment but on reduced hours or on intermittent days.

This may give you time to recover from any aggravation to your injury caused by your work duties.

The best possible course an injured person who has brought a claim can take, is to try to go back to work.

If the injured person fails 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;
  • That 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.

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.

An example could be where a 62 year old bricklayer injures his back, he is likely to find it extremely difficult to find alternate work.

However 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 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 to have a “residual earning capacity”, and should give their best efforts to exercise that residual earning capacity.

However 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 significant pain.

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, then make sure you see your doctor to obtain his or her confirmation.

Your doctor is best advised to tell you if it is appropriate for you to cease your work, or reduce your work hours or work duties, due to your injuries.

This then validates you ceasing your work or reducing your work duties or work hours.

How much compensation did other people get awarded for their injuries?

To help you understand more how much other people were awarded for their compensation claims, (who may have similar injuries to you) we pulled together some helpful, real life personal injury payout examples..

These include compensation for injury at work as well as car accident injuries, workplace injury and slips, trips and falls. You may have suffered an injury that means that you can’t return to work. We assess the type of injury that you have suffered and will look at current medical reports, the costs of your future medical treatment, along with important factors such as whether you are left with a total and permanent disability.

How much compensation will I get for my accident?

If you seek compensation, our compensation calculator gives a basic indication how much compensation you may be able to claim. 

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