Lost Wages And Lost Future Earning Capacity

How To Make A Claim For Lost Wages Or A Loss Of Future Earning Capacity In A Florida Personal Injury Case

When you are injured in an accident and you cannot do your work because of your injury, you have a legal claim for lost earnings or your time off from work.  This may include time off work while you are recovering from your injuries, because you are unable to do your job due to extreme pain, or because you have to make doctor’s visits that are during your normal workday.

On the other hand, when your injury from an accident is going to cause you to miss time from work in the future, must change careers because of an injury, or you will not be able to work at all in the future, then you have a legal claim for a loss of earning capacity.

How Are Lost Earnings Calculated In A Florida Personal Injury Case?

In a personal injury case, calculated your lost earnings in the past is generally easy for most people.  Usually, you can just total up the number of hours that you missed from work and multiply by your hourly rate.  When you have used paid-time-off or vacation time instead of taking unpaid leave, then the insurance company should still evaluate your claim as if your time off work was unpaid.  You earned your days off from work and you would not have been required to use your time off benefits had the accident never happened.

These damages are usually easy for an insurance company or a jury to give you because there is actual proof of the loss.

Lost Earning Capacity Covers Everything Else In The Future

Damages that have not yet occurred are more difficult to prove but are nonetheless just as valid to claim in a court of law.  Likewise, lost earning capacity refers to income that an injured person has not yet made (and hence missed out on) at the time that a claim is valued by an insurance company or a jury.

A claim for lost earning capacity in the future can take several shapes.

Permanent And Total Disability

First, if you are totally disabled as a result of an injury, then the value of your lost earning capacity is calculated based on your earning record up to your work life expectancy.  It usually takes a very serious injury to render a person totally and permanently disabled.

Many economists use either age 65 or age 67 to calculate your future earning loss times your average annual income in that line of work.  These ages are used by many economists because those are the ages that the Social Security Administration considers full retirement age depending on your birth date and most juries will accept that as fair.

While many people work beyond the Social Security retirement age if they can, a jury will make a determination whether you are likely to do so based on your age, line of work, and other factors within common judgment.  For instance, a person already over the retirement age but still has a job can show the ability to work past age 65 or 67.

Partial Or Limited Disability

Second, you may be unable to do the same job because of your injury but can re-train or change jobs to do something else.  In this instance, you are not permanently or totally disabled even if you can no longer do the same job.

This is a hard pill for a worker to swallow because that person has likely invested much time and effort into becoming qualified in their field only to have to find something else to do.  This can be a harsh reality for claimants because a jury may be skeptical of their claim as they can still work but they can no longer do what they have been good at in the past.  Changes are naturally hard to make but become necessary to survive.

Disqualified For Promotions Or Advancement

Third and perhaps even harsher is when an injury does not prevent the person from doing their job but it does inhibit their ability to get promoted or advance.  Many jobs in today’s economy require constant increases in performance and efficiency.  A relatively “minor” injury can take a person who was an outstanding worker to an average performer.

While a person who can maintain outstanding performance over time gets promoted, the average performer stays put in the same job without any hope of advancement.  Likewise, an employee who had a perfect attendance record when they had no medical problems must now be absent from work on a regular basis to obtain medical treatment.  It is unfortunate but the harsh reality is that the person who must take time off for medical reasons is often seen as not committed to their job and/or a medical liability by their employer.

Ultimately, a jury gets to decide what would be a normal progression of promotions and increases in qualifications over the course of a career.

Rate Of Growth

With most workers, their earnings generally increase over time as they become more experienced and demonstrate loyalty to their employer.  While there is no specific statute in Florida that authorizes a jury to consider pay increases over time, there are personal injury and wrongful death cases in which the issue was fairly considered.  Since everyone’s career takes a different path, the issues to your case regarding an increase in pay over time are likely unique.  As such, these are some of the most difficult damages to get from an insurance company, however, you might get a jury to understand.

Fringe Benefits

Many jobs come with fringe benefits in America (health insurance, dental insurance, disability insurance, 401(k), etc.).  Fringe benefits have significant financial value for many people and are a valuable compensation for employees.  Therefore, when a person loses a job with benefits due to an injury, the loss is greater than the dollar amount that the employee took home as it includes the compensation plus all benefits.  If your injury caused you to lose a job with benefits and you are unable to re-gain employment with benefits, a jury is legally allowed to consider whether you have been wrongfully damaged by the loss.

Temporary Wage Loss In The Future

One final consideration for future earning capacity is the temporary loss of income after a major surgery or other medical procedure that is expected to make the person unemployable for a limited amount of time.  For example, a person with a rotator cuff injury may be able to perform limited job functions until they have surgery.  After surgery, that person is likely to be unable to do the same work for at least 6 weeks during the recovery period.  The 6 weeks loss of income is a clear and provable damage that can be considered by a jury.

Contact A Lakeland Personal Injury Attorney About Your Case

If you have a personal injury case and need help determining the value or extent of your income losses, you should contact a Lakeland personal injury attorney for advice on your case.  A consultation with an attorney is free.  We represent clients who are out of work due to an accident in Polk County including Lakeland, Winter Haven, Bartow, and Haines City, Florida.


March 28, 2017