Recover Lost Wages in Personal Injury Insurance Claim
A key element of your insurance claim should be compensation for any income that you lost due to the personal injuries you suffered in the accident. We call this kind of compensation “special damages”. This page will give you some ideas on how to present your claim. This is just minimal coverage since our complete information will be found in our members’ side.
1. Lost Wages, Loss of Income, Loss of Earning Capacity, and Loss of Future Income
The tortfeasor is responsible for compensating her victim for all damages proximately caused by her negligence. Hence, she will have to pay for all of the following:
- Lost Wages: we use this term for an employee, whether salaried or hourly; this loss includes ALL time away from work for both medical treatment AND due to physical incapacity to perform your normal tasks.
- Loss of Income: we use this term for self-employed victims or those who own their own businesses. Proof of this kind of loss is more difficult, and will be addressed in a separate article.
- Loss of Earning Capacity: this applies to both the employee and the business owner. The injuries often preclude the victim from performing at the level he was before the accident. Or he has to take up a different line of work. His capacity to earn has been diminished. Proof of this loss is more difficult, and will be addressed in a separate article.
- Loss of Future Earnings: this applies to both the employee and the business owner. It is related to the Loss of Earning Capacity, but it is not so serious, nor so long lasting as the former. Hence, we will discuss Loss of Future Earnings in this article.
2. Claimant has the BURDEN OF PROOF of ALL ELEMENTS of Damages Stemming From Bodily Injuries
Sometimes the adjuster seems so friendly that a claimant will assume that she is going to “help” with proof of the claim by gathering information for her file or by approving loss elements with less than strict proof.
DO NOT fall into that trap: if you fail to present each element of proof necessary for your claim, you will not be compensated. And in the case of failing to secure written doctor’s authorization for your absence, you could have a tough time obtaining it two years later.
The adjuster is NOT going to do your work for you, and if you fail to secure the necessary evidence (i.e. a doctor’s record), you cannot use the old “the dog ate my homework” excuse. That element of your insurance claim will fail for lack of proof.
3. Elements of Proof for Lost Wages Compensation from Accident Injuries
Of course the first element of your proof will be liability. You have to prove that the tortfeasor was negligent, and that you were not, or at least try to minimize your comparative negligence. But beyond that, proof of damages for lost wages will require evidence of each of the following three elements:
- Prove that the negligence caused an accident in which you sustained injuries.
- Prove that those injuries prevented you from working, and that your medical treatment also caused you loss of work time.
- Prove the value of the lost time
4. How to Prove That Bodily Injuries Prevented You from Working
Unless it is so obvious that you could not possibly work (i.e. body cast), you MUST have WRITTEN authorization for EACH absence from work. Usually the adjuster will agree to pay for a couple of days just after the accident if you sustained obvious injuries. But beyond that, you must get your doctor to “BLESS” EACH day of absence in her records, or with a chit that she will hand to you,
Here is where claimants goof up: the doctor may discuss taking a bit of time off of work, and you agree, BUT there is no comment in the records. So simply ask the doctor to make sure that she includes her recommendation in writing.
5. How to Prove the Value of Your Lost Wages
You will need something in writing to prove the value of your lost hours. The easiest thing to get is a Leave and Earnings Statement that shows your wages and the hours of time missed. As noted below, you get paid for your loss even if the time that you took is “paid” back to you via use of sick leave, vacation time, or comp time.
For most cases a simple Leave and Earnings Statement will suffice. But there are frequent instances where some proof of your work is required. Hence, we use a simple letter from the employer. Have it prepared on your company’s letterhead, and make sure that the letter identifies the nature of your work along with the other details of proof we have discussed.
6. FIGHT Insurance Adjuster Attempts to Reduce Lost Wages Claim
Here are some slick tricks used by adjusters. They will try to reduce the value of your lost wages claim by:
- Paying you just the NET, not the GROSS wage loss; WRONG—you get the full GROSS amount of your pay.
- Excluding hours for which you were paid, such as sick leave, vacation pay, or comp time; WRONG—you get full value for use of those assets.
7. Compensation for Loss of Future Earnings
There are a lot of injuries that will impact the ability of the victim to work long after the insurance claim settlement is paid. We often see the victim’s income suffer a year or so after the insurance settlement, but by that time it is too late to gain compensation. Absent unusual circumstances, an insurance settlement cannot be set aside. Once you agree, then all future medical costs and all future wage loss is on YOU. There will be no compensation coming your way from the tortfeasor’s insurance company.
Hence, it behooves us to make sure our victims present FIRM PROOF of future problems that the doctor predicts. Notice that the proof is not some general non-committal statement, such as: “The patient is released from care at this time, but he can expect future problems with his neck that could impact his ability to work.”
NO, that kind of prognosis will NOT sustain your burden of proof. Why? Because proof of damages can NEVER BE SPECULATIVE. That doctor has not committed himself to a firm statement that the victim, on a more likely than not basis, WILL suffer problems that WILL make his work much more difficult, if not impossible.
Since speculation will NOT sustain your burden of proof for this element of special damages, take a look at your doctor’s prognosis and discuss it with him.