When someone has been injured, as a result of the negligence or recklessness of someone else, there is a potential for recovery of loss of income. Loss of income and loss of earning capacity are both potential elements of damage in a personal injury case. Proving loss of income can sometimes be tricky, and establishing loss of earning capacity can be even more difficult. However, an experienced personal injury attorney will have the expertise to find and present the evidence you need to support your claim.
Loss of income vs. Loss of earning capacity
Loss of income is not the same as loss of earning capacity. Loss of income means exactly that — loss of actual income. Whereas loss of earning capacity refers to the income you could have earned had you not suffered an injury. The distinction may seem subtle, but these are entirely different legal concepts. While you may be able to prove a loss of income, you may not have a claim for lost earning capacity. Regardless, it is wise to claim both so that you don’t unintentionally limit your recovery by claiming the wrong type of damage.
How to prove loss of income
Loss of income generally covers only “past” losses, up through the date of trial or settlement. Specifically, lost income or lost wages are determined by the amount of money you are paid for the work you do. Proof of this amount can easily be established through your pay stubs or your employer’s payroll records. Along with your payroll records, you would need documentation from your employer regarding the days you were absent as a result of the injuries you suffered.
You may also be entitled to recover for lost compensation, which includes the additional financial benefits of your employment. For example, lost compensation can include sick days, vacation days, pay bonuses, and other employment perks. Discuss these other possibilities with your personal injury attorney.
How to prove loss of earning capacity
Although loss of earning capacity claims cover past losses, they also cover future losses. The first element that must be shown is that some aspect of your physical injury affects your earning ability. There are several factors that are considered in establishing a loss of earning capacity, including: stamina; weakness and degenerative injury resulting from the injury; ability to work with pain; and remaining efficiency. In many cases, actual lost earnings are sufficient proof to establish the amount of future lost earnings.
Use of experts in establishing future earning capacity
Proving this element of your damages can be complicated and often requires the coordinated efforts of a medical doctor, a vocational rehabilitation expert and an economist. The medical doctor is required to describe your medical limitations and how the long those limitations are expected to last. The vocational rehabilitation specialist then combines those limitations with the results of your vocation testing and predicts the highest paying job you would be able to hold. The specialist will also estimate your expected pay in that job, had you not been disabled. Finally, the economist reduces these future lost wages to the current fair market value. Ultimately, a prediction can be made, to a reasonable certainty using the best evidence available, as to the monetary value of your future losses.
If you have questions regarding personal injury damages, or any other personal injury issues, call the Cottrell Law Office at (888) 433-4861.
He is licensed to practice law in the United States District Court for the District of Kansas, eastern Arkansas, western Arkansas, and western Missouri. He was Deputy Prosecuting Attorney in Crawford County, Kansas from 1987-1989.
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