My insurer doesn’t want to pay part of my personal injury claim because they believe I have some ‘residual earning capacity’, the problem is that there aren’t any local job opportunities. Can the insurance company refuse to compensate me because of this?

If you seek compensation for a personal injury, one of the key factors in determining quantum (the dollar figure amount of compensation) is your ability to obtain other work, whether it be in your pre-injury type role or otherwise. This is known as “residual earning capacity” and it refers specifically to your personal capabilities in being able to carry out some role of employment.

When there is a shortage of local job opportunities…

Usually, a person who sustained a workplace injury will not have medical clearance to perform the exact same duties that they performed prior to the injury. The problem that some claimants face is that while they may be capable of doing a different type of job, that doesn’t necessarily mean that there are jobs of that description available close to where the claimant lives.  It is one thing for a claimant to go out and retrain and learn skills applicable to a new industry, but it is another issue entirely as to whether there is a market for those skills in the claimants’ local surrounds, especially where there is a shortage of local job opportunities.

When determining residual earning capacity, the court will apply a reversed evidentiary onus to the defendant, meaning it is up to the insurer (or other body) who is contending that you have a residual earning capacity to provide evidence of what you are capable of doing and what jobs are open to you.

Reasonable travel time to alternative work

When determining the distance that is to be considered as reasonable for the claimant to travel, courts have agreed that 1 hours drive away is likely to be reasonable, but anything beyond that may not be. Further, if the insurer requests that you should relocate to a place that has greater work opportunities, such as into a major city when you are currently residing rurally, the courts are likely to deem this as unreasonable and refuse such a request from the defendant.

A useful reference from the case Nominal Defendant v Livaja [2011] NSWCA 121 at [65] sets out:

“…Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent  all his or her life in a skilled or semi-skilled occupation which, as a result, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation…”.

What is critical in assisting your submission that there are no local job opportunities available to you in reasonable proximity is providing evidence as such. You must be able to prove in some way that there are no major employers close by, that there are more job seekers then there are job opportunities and that there are otherwise no employers willing to employ someone of your personal circumstance with disabilities. A labour market analysis should include at minimum what you consider is your travel time, demographic information about the area, employment statistics in the area, the existence of actual jobs and your realistic prospects for obtaining such jobs.

If you would like to discuss your claim to compensation, contact our offices for a free consultation with one of our Brisbane personal injury lawyers on (07) 3252 0011 or through our general enquiries page.

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