Mitigation and returning to work after an injury: What you need to know



May 3 2022

Your duty to mitigate by returning to work

All personal injury plaintiffs are required to try and minimize their damages. This is called the duty to mitigate. Essentially, it means that even if someone else’s negligence caused your injuries, you have a responsibility to take all reasonable steps to heal from your injuries as best you can and to reduce any negative consequences from your injuries. If you could have taken reasonable actions to avoid or minimize a loss and you chose not to, damages for that loss will not be recoverable as our courts consider it unfair to make a defendant pay for losses that a plaintiff could have reasonably avoided.

Follow the medical treatment plan your doctor gives you

The duty to mitigate includes following the advice of your health care providers in relation to the treatment of your injuries. This may mean taking medication that your doctor prescribes, going to physiotherapy and other therapy sessions that are recommended, or undergoing a recommended medical procedure that will lessen your pain and suffering. It may also mean delaying a return to work until you are sufficiently healed.

Whether you have failed to mitigate your losses is a question of fact and it is up to the defendant to prove, on the balance of probabilities, that you did not mitigate your damages. If you ignore the recommendations of your health care providers and the defendant can show that doing so had a negative effect on your recovery, the compensation you receive may be reduced accordingly. In addition to impacting the amount awarded for general damages for pain and suffering, your award for loss of income could also be impacted if it is shown that had you pursued appropriate medical treatment you would have had a shorter disability period.

While you do have the right to refuse medical treatment, and sometimes is it wise to obtain second opinions regarding treatment, if your refusal is deemed unreasonable and it negatively impacts your recovery from your injuries, your damage award can be reduced.

Mitigation and returning to work

The duty to mitigate also requires that you return to work, to the extent that you can, as soon as you are able to do so. If you are physically 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 point 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 you can perform some type of work to 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. 

Before attempting a return to work get clearance from your health care providers

Your decision to return to work should be made in consultation with your health care providers. They will need to give you the go-ahead to return to work based on the status of your recovery and you should be careful not to return to work until you are medically cleared to do so. If you return to work too early against medical advice and you suffer further injury, this could also have a negative impact when your damages are assessed at the end of your lawsuit.

Your doctor may also recommend a gradual return to work or a return to work with restrictions, depending on the physical limitations following your injury. These restrictions can be permanent or temporary. Typical restrictions include avoiding heavy lifting or other heavy work such as pushing, stooping, bending and climbing. You may be advised to avoid kneeling or squatting. You may be restricted to light duties, modified or sedentary work. Factors considered in your return to work as a result of your restrictions are called accommodations.

Steps to take when you are ready to return to work

The following steps are good ideas in planning your return to work:

  • speak to your lawyer, if you have one, so they know what is happening and have the opportunity to advise you;
  • make sure you have early and frequent communication with your employer during the course of your recovery from your injury – let them know how you’re feeling, what your doctor is telling you about your injury, and how soon you may be able to return to work;
  • discuss any work restrictions that you may have and any accommodations that you may need with your employer, and jointly come up with a return-to-work plan that is approved by your doctor;
  • provide your employer with any medical documents or information that may be necessary to back-up your claimed work restrictions, while ensuring that your employer knows that the information should remain confidential;
  • keep a record of all communications with your employer about your return to work;
  • involve your direct supervisor in your plans to return to work, and your union representative, if you have one;
  • reach out to your fellow employees and tell them of your return-to-work plans, as your plans may have an impact on them and you will want them on-side, and not undermining you as “getting special treatment”;
  • reach an agreement with your employer, supervisor and union representative as to what your expected performance standards will be during your period of accommodation;
  • discuss with your employer, supervisor and union representative (if applicable) how long you expect to need accommodation while you readjust to work; and
  • make sure you schedule a follow-up meeting after you have returned to work for a period of time to ensure the accommodation is working, and to assess if your accommodation needs have changed.

How much medical information do you need to disclose?

While your employer should not be second guessing the medical information you give to them, they do have the right to ask for reasonable clarifications relevant to the accommodation required.

Your employer’s duty to accommodate

Employers (and unions) have a legal obligation to try to accommodate you as you return to work, up until the point of “undue hardship.” So, what is undue hardship? That is not always clear but the courts have set out several factors 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,
  • the fact that certain health and safety factors are not met, and
  • the magnitude and risks of any safety issues that go along with the accommodations.

There is also an exception to the employer’s duty to accommodate. If the employer can establish there is a “bona fide occupational requirement” for the job which the injured employee cannot fulfill, the employer will not have to accommodate. A bona fide occupational requirement must be essential to the job, and not just a preference, such as the preference for a high school diploma.

The plan for a return to work should have a rehabilitative focus, and should be seen as transitional in nature. Accommodation may also involve a graduated return to work, or a return to stipulated lighter work duties.

The following is a guideline offered by the Public Service Alliance of Canada when considering how and what can be proposed as accommodation measures:

  • Can the worker perform their existing job as it is (i.e., same classification, location and wages)?
  • If not, can they perform their job with modifications, physical changes or “re-bundled” duties?
  • If not, can they perform another job in its existing form (i.e., same classification, location and wages)?
  • If not, can they perform another job with modifications, physical changes or “re-bundled” duties? (This may involve re-training.)

You as the worker must also be reasonable in the process, and accept “reasonable” accommodation, even if it is not exactly what you want. If you refuse a certain offered accommodation, you may have to provide an explanation for your refusal.

How having a lawyer can help

After an injury the most important thing is that you focus on your recovery. There may be pressure for you to return to work, either because you’ve got bills to pay, or because your employer is making demands. Having a lawyer to advise you can be helpful in securing the funds you need to make sure you aren’t forced into a return to work that could jeopardize your long-term health and wellbeing. Likewise, balancing the competing elements involved in fulfilling your duty to mitigate and dealing with workplace accommodations is easier when you have experienced personal injury lawyers on your side to assess your situation and represent your interests.

CAM LLP has helped many clients deal with mitigation and return to work issues including dealing with employers on return to work plans. CONTACT us for a free consultation.