Yes, they can argue it. No, that doesn't automatically make them right.

If you got hit by a car backing out of a parking space at the Hannaford or Shaw's lot in Augusta, and the driver's insurer is now saying you "failed to mitigate damages" because you waited on surgery, here's the ugly part: that is a real insurance company argument in Maine.

It's also one they love to twist.

"Failure to mitigate" basically means you made your injuries worse by not getting reasonable treatment. That sounds clean on paper. In real life, it's messy as hell. A single parent with two kids, rent due, and a job that won't hold a position open while you recover is not the same as someone casually ignoring medical advice for fun.

That matters.

Delaying surgery is not the same as refusing treatment

Most people don't go straight from a grocery store parking lot crash to surgery. They go to urgent care. Then PT. Then injections. Then they try to keep working through pain because bills don't stop in Augusta just because your back or shoulder is wrecked.

That conservative treatment trail usually helps a claim, not hurts it.

Insurers know surgery is expensive. So first they say you don't need it. Then if your condition gets worse after months of trying PT, meds, rest, and modified work, they turn around and say you waited too long. Same injury. Same crash. Different excuse.

If your own doctor recommended conservative care first, that is not "failure to mitigate." That is standard medicine.

And if the company doctor or insurer's doctor says it's "not that bad," while your treating doctor says surgical repair is now necessary, the treating doctor usually carries more weight because that doctor has actually been following your condition over time.

Settling before surgery is where people get trapped

If the insurer offers money now, before surgery, it may look tempting. Especially if you're driving kids between school, child care, and work off Civic Center Drive or Western Avenue and every missed shift puts you further behind.

But once you settle, that's usually it.

If you sign a release and then need surgery six months later, the insurer is generally done paying. Your future operation, follow-up care, missed wages, and complications can become your problem.

That's why the timing matters so much.

If surgery is being seriously discussed, settling before you know whether it will happen is risky. Not because surgery automatically makes a case more valuable, though it often does. It's because surgery answers the biggest open question in the claim: how bad is this injury really, and what will it cost?

Without that answer, the insurer will price your case like the problem might magically go away.

But waiting too long can hurt case value too

This is the part nobody likes.

If there's a long gap in treatment - months of no appointments, no follow-up, no imaging, no documented complaints - the insurer will say one of two things:

• you got better, or
• something else caused the need for surgery later

In a place like Augusta, they may point to a physically demanding warehouse job, a fall on ice in January, lifting groceries, or even just "degenerative changes" and argue the crash in the parking lot wasn't the real reason anymore.

That doesn't mean a delayed surgery claim is dead. Maine is an at-fault state, so the backing driver's insurer is still responsible if their insured caused the harm. And Maine gives you a long runway compared to most states: six years to file a personal injury lawsuit. That deadline surprises a lot of people.

But a long statute of limitations is not the same thing as a strong case.

You can have years left to sue and still have a claim that got weaker because the medical story became muddy.

What actually helps when the insurer says "failure to mitigate"

The fight usually turns on documentation, not outrage.

If you delayed surgery because you couldn't afford to miss work, couldn't line up child care, had to exhaust PT first, were waiting on specialist approval, or were following a doctor's plan to try non-surgical treatment before operative repair, that needs to be in the records.

Not just said later.

A clean timeline looks like this: crash in the grocery lot, immediate symptoms, early treatment, consistent complaints, conservative care that didn't fix the problem, specialist referral, imaging that matches the injury, then surgery discussion.

That sequence is hard for an insurer to casually dismiss.

A bad timeline, from their perspective, is different: crash, a couple visits, then silence, then surgery a year later after pain got unbearable. That's when they start throwing around "mitigation," "unrelated condition," and "preexisting degeneration."

The company line that "you don't need surgery" is often about money

Here's what most people don't realize: the insurer does not get to make your treatment decisions.

They can challenge whether treatment was reasonable and necessary. They can hire doctors to nitpick records. They can deny. But they don't get to declare your body fine because the claim got expensive.

If your doctor in Augusta says conservative treatment failed and surgery is now medically necessary, that opinion matters a lot more than a paper review from someone who never watched you limp through a workday.

If you're still before settlement, the smart question is usually not "can I hold out longer?" It's "is the treatment path clear enough yet to know what this injury is really going to cost me?"

Because once surgery enters the picture, a quick payout starts looking cheap.

And if the insurer already denied your claim using "failure to mitigate," they've shown their hand: they're going to blame your survival decisions - work, money, kids, timing - for the damage their driver caused in that parking lot.