Anyone who has been injured in an accident knows that it can be a period of extreme stress. In addition to coping with the pain caused by your injuries, you must deal with the tasks of daily life while injured and the fear of an unknown future if your injuries are serious enough to impact your ability to work.
Even if you recover from your injuries to the extent that you are cleared to return to work, there is uncertainty as to whether or not you will get your old job back, what will happen if you are no longer able to do your old job, and what your employer’s obligations are to you. All of this is important to consider as it will impact the loss of income that you will be entitled to in your personal injury claim.
Here are some important things to consider:
The Duty to Mitigate Generally
All personal injury plaintiffs are required to try and minimize their damages. This is called the duty to mitigate. Essentially, it means that, as an injured victim, you have a responsibility to try and improve your situation to the best of your ability. You must take all reasonable steps to try and reduce the negative consequences of your injuries and prevent your losses from accumulating or your injuries from worsening. If a plaintiff could have taken reasonable actions to avoid a loss or minimize the impact of their loss and chooses not to, damages for such losses will not be recoverable as our courts consider it unfair to make a defendant pay for losses that a plaintiff could have reasonably avoided.
The duty to mitigate requires that you follow the advice and recommendations of your health care providers in relation to the treatment of your injuries. This includes taking medication that your doctor prescribes, going to physiotherapy and other therapy sessions that are recommended, and perhaps undertaking a recommended operation that will lessen your pain and suffering.
From a legal standpoint, whether or not a plaintiff has failed to mitigate their losses is a question of fact, and it is up to the defendant to prove, on the balance of probabilities, that a plaintiff did not mitigate their damages. If you choose to ignore the recommendations of your health care providers and the defendant can show that your recovery has been negatively impacted because of that, the compensation you receive will be reduced accordingly. This may impact not only the amount awarded for general damages for pain and suffering, but also other damage awards such as loss of income if the treatment that was not undertaken would have led to a shorter disability period
Of note, the courts do recognize your right to refuse medical treatment that you do not wish to have: it is, after all, your body. If, however, your refusal is deemed unreasonable or arbitrary, the law holds that the defendant should not have to pay for your choices.
Your Return to Work
The duty to mitigate also applies to your return to work following an accident. If you are able to return to work and choose not to, it is open to a court to refuse to award you a loss of income beyond the period when you could reasonably have been expected to return to work. Similarly, if you are unable to return to your previous employment because of your injuries, but are able to perform some type of work and earn an income, and you choose not to return to the workforce, a court may decide that you have not adequately mitigated your damages and reduce your award accordingly.
Your Employer’s Duty to Accommodate
When you are ready to go back to work, it may be the case that you are no longer physically capable of performing the duties that were required in your old position. If this is the case, your employer has what is known as a “duty to accommodate.” This means that when an injured employee is ready to return to work, an employer is required to take reasonable steps to accommodate the employee’s needs and adjust their workplace duties. However, an employer is only required to accommodate an employee’s disability to the point of undue hardship. So, what is undue hardship? The courts have set out several factors that will be considered in assessing undue hardship including:
- financial costs to the employer of accommodating the employee,
- the size of an employer’s business,
- whether or not the necessary accommodations would disrupt a collective agreement,
- whether or not the accommodations would cause a morale problem among other staff, and
- the magnitude and risks of any safety issues that go along with the accommodations.
When attempting to establish accommodated duties for an injured employee returning to work, it is expected that both the employer and employee (and the union if the workplace is unionized) will work together reasonably and cooperatively to find a solution that will work for all parties. It will ultimately be the responsibility of the employer to ensure that all reasonable steps are taken to accommodate a returning employee, but an employee cannot expect a perfect solution.
Accommodation for Modified Work Duties
Frequently, injured employees are cleared by their physicians and required by their insurance company to attempt a gradual return to work, or a return to work with modified duties, instead of going straight back to their old job. If this is your situation, your employer has a duty to accommodate you, within certain parameters, and to honor your request for modified duties unless the employer can demonstrate that the modifications prevent you from performing tasks that are absolutely necessary to do your normal job. In law, this is called a bona fide occupational requirement (BFOR). If an employer can show that the job standards are a BFOR for your regular job, they are not required to accommodate you.
This Supreme Court of Canada case established a three steps test that an employer must follow to show that the job tasks are BFORs:
- The employer’s job standard is for a purpose that is rationally connected to the performance of the job;
- The employer adopted the job standard in an honest and good faith belief that the job standard was necessary to fulfill a legitimate work-related purpose; and
- The job standard is reasonably necessary to accomplish the legitimate work-related purpose established in step two.
If your employer can’t prove on a balance of probabilities that the job standards they have put in place are legitimate BFORs, and they refuse to accommodate your return to work, you may have a claim against them for discrimination based on disability.
Whether or not you are fit to return to your old job, with or without accommodation, will be an important factor in the loss of income claim in your personal injury action.
If you have been injured and your employer is asking you to return to work or you are contemplating a graduated return to work, but have concerns about your ability to do your old job or the job your employer has provided to accommodate your injuries, CONTACT US for a free consultation.