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Title: Employer wants my payout

Date: 01 November 2012

Question

Last November I was knocked off my bike by a car driver who pulled out of a junction and didn’t see me. I was unable to work for 3 months, signed off by my GP. I recently saw my opponent’s medical expert whose report states that only 1 month off work was reasonable. Now I am facing having to repay my employer for 3 month’s sick pay yet I am only going to get 1 month’s pay from my opponent. How is this fair?

Stanley Robson

Answer

I assume your employment contract contains a subrogated claim clause allowing your employer to claw back sick pay paid to you from the compensation you receive. If you have been to an appointment with the Defendant’s expert then I assume you have had your own expert’s assessment also so you need to check what your expert said. If he/she has not commented on this you can put specific questions to your expert enclosing the GP sick notes and asking him/her to comment on the reasonableness of the time off.

It may be that your GP may be prepared to write a letter to assist you. If you don’t get anywhere persuading your own expert or the Defendant’s expert to justify the full 3 months then I would check your employment contract to ensure there is a claw-back provision and if so speak to your employer and explain the position in the hope that they only claw back the amount you actually receive for loss of earnings in your claim.

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