Hergott: Uncertainty of personal injury claims

Lawyer Paul Hergott tackles personal injury claims in his latest column

A personal injury claim can feel like a minefield of uncertainty. A bunch of that has to do with taking time off work. I am going to clear away the cobwebs with my best legal advice about that issue.

Some of what I write might sound like medical advice. If my suggestions seem to conflict with the advice of your medical team, I recommend that you discuss any perceived conflicts with those folks to see if they can be resolved. If not, of course follow their advice which is specific to your medical condition, not my generic suggestions.

And my advice might or might not be widely shared among lawyers. Again, I recommend that any perceived conflicts be discussed, but of course follow the legal advice of your trusted legal advisor which is specific to your case.

You’re injured in a collision. No broken bones, but you feel like hell. Getting out of bed the next morning is difficult. Heading in to work feels like an impossibility.

You get in to see a doctor as soon as you can and ask for a note to be away from work.

If they feel it is medically appropriate, your doctor will take you off work. And on your request, they will extend the time if the doctor continues to feel it is medically appropriate.

ICBC and other disability insurance providers will push to have you back to work as soon as possible. They care about cutting off disability benefits, not about you.

Graduated return to work programs are proposed, at as fast a pace as possible. It might feel way too soon. What if you agree to try, and it turns out to be impossible to maintain?

And you continue to experience pain. Won’t returning to work give the false impression that you’ve fully recovered?

Consider what your co-workers will think while you are away from work? Particularly if they buy even a sliver of ICBC’s propaganda about insurance fraud. Unless you are in the hospital, I suspect that they are feeling a little jealous, that you are taking a bit of an “ICBC Holiday”.

And the longer you are away, those feelings grow.

If they see you out in the community, or you pop in to work for this or that, you will appear perfectly fine. Those feelings grow even more.

My advice: Instead of asking your doctor to take you off work, beg your doctor’s permission to try to continue working, asking for medication to help deal with your muscle spasms and pain.

Ensure your doctor is fully informed about your symptoms and the nature of your work. It might be necessary to be away from work to avoid causing more harm. Or to allow for healing.

If your doctor says you must not return to your job for a period of time, ask the doctor to be very clear about the level of activity restriction that’s necessary. And beg for permission to ask your employer for a modified work arrangement, at reduced hours if necessary.

However stringent your medically mandated activity restrictions, beg your employer to come up with a modified arrangement to accommodate them. Heck, even if it’s showing up for an hour or two a day to support those picking up the pieces of your absence.

Your employer doesn’t want to pay you for under-productive time? Offer to do it for free!

But what if your attempt fails? You try, but just cannot make it? Get back in to see your doctor, report on the attempt, and get updated medical advice.

In a nutshell, my advice is to struggle to maintain your employment as fully as possible except to the extent that doing so might cause further harm or impede your recovery.

But why? Why bust your butt to help the disability insurance company? You have disability insurance benefits for a reason!

A doctor’s note does not prove an employment disability. The most effective way to identify, and prove, your injury related limitations is to push up against them.

Supervisors and co-workers can be the very best witnesses in a personal injury case. Never, ever “put on a show”, but if you are truly struggling to do your job, your struggles will be noticed. And you will avoid the cynical “ICBC Holiday” perception.

Only one person benefits from income loss. And it’s not you. Lose $1,000.00 of income and the very best you can do is recover reimbursement of loss. If you have to hire a lawyer to achieve justice, you will lose a chunk of that loss to legal fees.

The law requires you to take reasonable steps to keep your losses to a minimum. If you take the proactive steps I’m suggesting, you will avoid some snide insurance company representative ever being able to suggest that you didn’t do enough.

And you know what? I am willing to bet that medical specialists would say that it’s good medical advice to keep as physically functional and fully participating in your regular life and activities as reasonably possible.

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