When you go back to work after an accident, it can feel like a big step forward. However, being able to work again is not always the same as returning to the same kind of work as before.
You may have gone back to the same job, but with fewer hours. Maybe you’ve had to take a lighter, lower-paid job because you can no longer manage the physical demands of your old one. Perhaps you have lost overtime, bonuses or promotion prospects.
You may go back to earning roughly the same as before, but know that if you lost this job, your injury would make it harder to find a similar one that pays the same money as you are currently on.
If that sounds familiar, you might think the door on any compensation claim has closed. After all, you are working again, so there is nothing left to claim for?
In fact, the opposite is often true.
If your accident was caused by someone else and you have a valid personal injury claim, those changes to your working life can form an important part of your claim for compensation.
What if I can work, but only in a lower paid job?
If you suffer injuries in an accident caused by someone else and have to take time off work and lose earnings because of your injuries, then most people would probably know you can claim for loss of earnings.
However, sometimes it’s not quite that straightforward.
Let’s suppose you were earning £40,000 a year in a physically demanding job before the accident. Your injuries now mean you cannot safely return to that job. After undergoing rehabilitation or retraining, you find a new job, but it only pays £30,000 per annum.
You’ve got back into employment, but at a cost. You are now £10,000 per annum worse off by having to take a job on less money as a result of the injury you suffered. There may also be other employment benefits you have lost.
So, if the medical evidence supports the view that your physical restrictions are likely to continue, any future shortfall in earnings may form part of your compensation claim.
What other work-related losses may be relevant?
Basic salary is potentially only one aspect of any possible claim you have from having to take a lower paid job than you had before the incident.
Depending on the individual circumstances and if there’s supporting evidence, it might be possible to claim for:
- overtime you would probably have worked,
- regular bonuses or commission,
- shift allowances,
- pension loss, and
- realistic prospects of promotion or pay increases.
You may also have retraining or vocational rehabilitation costs to recover as compensation if you can no longer return to your previous occupation.
You need evidence to support the losses you claim for. For example, you may have hoped that you would get a promotion at some time in the future, but if ‘hoped for’ is all you have to support your claim, it isn’t enough
Evidence that sets out the career path you were already following before your accident becomes important.
What if I am earning the same as I was before the accident?
This is where the position becomes less obvious.
Someone can return to the same job on the same pay and still have suffered a loss of earning capacity.
For example, a skilled manual worker may go back to work for an accommodating employer despite no longer being able to lift heavy objects or carry out certain physical tasks, because of the injury they suffered.
While that particular job with that particular employer continues, there may be no weekly wage loss at all.
But what happens if the employer closes, has to restructure or makes the worker redundant because of shrinking profits? They would then have to compete in the job market with people who don’t have any physical restrictions. The range of jobs realistically available to them may be smaller, sometimes significantly so, than it was before the accident.
In other words, they may suffer a disadvantage or handicap if they need to try and compete on the open labour market with those who do not suffer such disadvantages.
In a personal injury claim or medical negligence claim brought by the injured person, the courts can take this form of handicap into account and award compensation accordingly. This type of compensation or damages award is called a Smith v Manchester award, named after the court case of that name.
It is not something that automatically forms part of every injury claim. There needs to be evidence that the injury has created a real continuing disadvantage in the employment market.
How is future loss of earnings worked out?
In a relatively straightforward case, the starting point will be the difference between what you would probably have earned annually without the accident and what you are now likely to earn.
However, that loss must be considered over an appropriate period, taking into account factors such as your actual age, likely retirement age, career prospects, and the uncertainties that affect future employment. How on earth do you work out anything like an accurate figure?
Lawyers and the courts use guidance known as the Ogden Tables when calculating future financial losses in serious injury claims in particular. They help work out what a future financial loss is worth as a lump sum today.
Medical evidence will also be important. It needs to establish what restrictions the injury is likely to cause and how long they are expected to last.
In larger or more complicated claims, you may also need evidence from vocational, employment, pension, or accountancy experts.
Do I have to try to return to work?
Someone making a compensation claim is expected to take reasonable steps to reduce their financial losses.
That does not mean returning to work against medical advice or accepting a job that you cannot safely do.
Depending on the circumstances, it could mean engaging with rehabilitation, considering a phased return, trying suitable alternative work or looking at retraining where this is realistic.
If the consequences of your injury amount to a disability under the Equality Act 2010, your employer may also have obligations to make reasonable adjustments. In some cases, government support through Access to Work may be available to help someone remain in or return to employment.
What evidence should I keep?
The evidence is not confined to showing what you have already lost.
It can also help establish where your career appeared to be heading before the accident and what has changed since.
Payslips, P60s, employment contracts, overtime records, bonus history and pension information may all be useful.
So too can job descriptions, qualifications, training records and appraisal documents, particularly where future promotion or career progression is relevant.
After the accident, keep records of everything – change in hours or duties, correspondence with your employer, your occupational health reports and details of retraining or alternative jobs you have considered.
The aim is not to speculate about what might have happened. It is to establish, as realistically as possible, the working life you would probably have had but for the accident and compare it with the position you now face.
Is there a time limit for bringing a personal injury claim?
In most personal injury cases in England and Wales, court proceedings must normally be issued within three years of the date of the accident or, in some circumstances, a later date of knowledge.
There are exceptions to the general rule, so legal advice should be sought if there is any doubt about limitation.
What matters is how your working life has been affected
Returning to work does not always mean that everything has gone back to how it was before the accident.
If you can no longer do the work you were trained for, have had to accept lower earnings, or now face a less certain future in the employment market, the effect on the rest of your working life may need to be taken into account when your claim is valued.
At Mooneerams, we look not only at earnings already lost but also at the longer-term effect an injury may have on work, career progression and financial security.
If you would like advice about a personal injury claim, call us on 029 2199 1927 for an initial discussion with no obligation.
Posted in Personal Injury Claims
