JZ helps (a Florida injury law firm)

Future Lost Earning Capacity in Injury Cases (Car Accidents and More)

Justin Ziegler, Lawyer

Lost Future Wage Earning Capacity

If someone’s negligence caused your injury, you may be entitled to compensation for many different types of losses.

These include, medical bills, pain, suffering and past lost wages.  The injured person may also be entitled to a payout for loss of future earning capacity.

Here, I’ll focus on settlements for lost future earning capacity.  

What Types of Accidents Can You Claim Loss of Future Earning Capacity For?

Accidents may include if you’re hit by a vehicle while on a:

Other incidents could include if you’re:

How do you measure compensation for loss of earning capacity?

Compensation for loss of earning capacity is measured by the plaintiff’s diminished ability to earn money in the future. The jury is not to be concerned with actual future loss of earnings, but with the loss of the power to earn.

Does an injured person have to show reasonably certainty of an injury in the future?

Yes.  The injured person must show reasonable certainty of injury, and needs to have evidence that lets a jury reasonably calculate lost earning capacity.

Is there 1 factor that determines how you measure loss of wage-earning capacity?

No.  Loss of wage-earning capacity may be calculated by:

(1) Extent of actual physical impairment;
(2) Claimant’s age;
(3) Industrial history;
(4) Education of claimant;
(5) Inability to obtain work of a type which claimant can perform in light of his after-injury condition;
(6) Wages actually being earned after the injury (a factor entitled to great weight);
(7) Claimant’s ability to compete in the open labor market the remainder of his life, including the burden of pain, or inability to perform the required labor;
(8) Claimant’s continued employment in the same employ.

What is the least amount of proof that you can have to get compensation for lost earning capacity?

Let’s take a look at a Florida case that required less proof than any other case that I know about for the claimant to prove loss of earning capacity.

While riding his motor scooter at around 9:00 p.m. at night in Miami Beach, Mr. Roberson went over an area of pavement being resurfaced by Maggolc.

Robertson struck a projecting manhole pipe, was thrown from his scooter, and was injured on the jagged surface of the roadway.

Robertson, the personal injury claimant, sued Maggolc.

Jury Awarded $160K for Future Lost Earning Capacity (Scooter Accident)

At trial, the jury determined that Maggolc was negligent and that Mr. Roberson should recover a total of $532,294.54, consisting of:

(a) past medical expenses of $17,294.54,

(b) future medical expenses of $20,000.00,

(c) pain and suffering, and other non-economic damages, of $250,000.00,

(d) past lost earnings of $85,000.00, and

(e) future lost earning capacity of $160,000.00.

Maggolc argued that Roberson’s skimpy testimony regarding past earnings and future earning capacity, unsupported by financial records of any kind, must have improperly made his claims for those losses on sympathy and speculation.

Mr. Roberson, a personal trainer, was the only witness providing numerical evidence regarding his earnings history and future prospects.

Having Prior Tax Returns and Other Records Can Help Prove Lost Earning Capacity

Though claiming an annual income before the accident of “approximately” $80,000, Roberson admitted that he had not filed tax returns.  He also didn’t have:

An acupuncturist who worked out of an adjacent area at the Standard Hotel in Miami Beach testified that she, like Mr. Roberson, had been one of the “original staff” of the hotel from 2005 to 2009, and that she had seen him training clients, including celebrity and well-to-do clients, and giving them workouts.

But the acupuncturist did not know how many clients Mr. Roberson had, and she did not provide any estimate of his charges or income.

What Was His Evidence of Lost Past and Future Wages?

The evidence regarding Mr. Roberson’s claim for past lost earnings and loss of future earning capacity consisted of:

1. Mr. Roberson’s testimony estimating that he made approximately $80,000 per year before the accident.

2. His testimony that he was paid $90 to $150 “per session,” earning between $1500 and $2000 per week before the accident, and working long hours six or seven days a week.

3. His testimony that after the accident his annual earnings had dropped to $15,000 (2010) and $20,000 (2011 and projected 2012).

4. His testimony that he expected to work as a trainer another eight years.

5. The acupuncturist’s testimony that she saw him at the hotel working long hours six or seven days a week, and that they cross-referred clients to each other, including celebrities, models, and professional athletes.

I recommend that someone in Mr. Robertson’s situation ask the acupuncturist to sign an affidavit stating what she observed.  This may help get the case settled before a lawsuit, particularly if there are low limits of insurance.

6. Mr. Roberson’s medical expert testified that Mr. Roberson had a seven percent permanent physical disability rating, giving five percent to his neck and two percent to his knees.  No occupational or other expert testified that Mr.Roberson was limited from other work, or estimated the income Mr.Roberson might get based on his age, education, and experience.

Discussion

The appeals court asked the following question:

Is the evidence described above, unsupported by any income tax returns (because he had filed none), bank records, receipt books, credit card slips, Social Security earnings history, client lists, appointment records, expenses, or other documents, is collectively enough to prove past lost earnings and loss of earning capacity with “reasonable certainty?”

Reasonable certainty as to the facts of injury and causation is more critical

Florida law says that reasonable certainty as to the facts of injury and causation is more critical than reasonable certainty as to the calculation of lost future earning capacity.

The court said that there was competent substantial evidence regarding the fact of Mr. Roberson’s injury and the causal connection between the injury and its adverse effect on his career as a personal trainer.

In Florida, do you need documentary evidence or past filed income tax returns (at an annual level that clearly requires a return) to recover lost future earnings capacity?

No.  However, you still need evidence like that evidence that Mr. Robertson had.  The jury can weigh your credibility when deciding whether to award you lost future earning capacity.

All things equal, credible claimants have an easier time getting lost future earning capacity damages.

The case that I talked about above is Maggolc Inc. v. Roberson, Fla: Dist. Court of Appeals, 3rd Dist. 2013.

Florida’s Third District Court of Appeal (DCA) issued its ruling on June 19, 2013.

Florida’s district courts of appeals (DCAs).

The 3rd DCA handles appeals for Miami-Dade and Monroe County, Florida.

Proving Future Economic Loss if Earning as Much or More than Prior to Injury

Where a claimant is earning as much or more than he or she earned prior to the injury, it is more difficult for the plaintiff to prove that he or she has suffered a future economic loss.” Miami-Dade County v. Cardoso, 963 So.2d 825, 828 (Fla. 3d DCA 2007).

Nevertheless, if the injured party if the injured party is earning more after the injury, he is not prevented from recovering damages for loss of future earning capacity. The jury will need to weigh these facts when deciding whether or not the injured party’s earning capacity has been impaired.

Does Personal Injury Protection pay Benefits for Loss of Earning Capacity?

Yes.  Personal Injury Protection (PIP) pays sixty percent of any loss of earning capacity per individual from inability to work proximately caused by the injury sustained by the injured person.

All disability benefits payable must be paid at least every 2 weeks.  Florida Statute 627.736(1)(b).

The injured person needs to have a solid understanding of how to get his or her medical bills paid after a car accident.

What happens if you had accepted a job offer, but now your injuries prevent you from working?

If you have the terms of the job offer in writing, that can be used to try to get compensation for your future lost wages.  The injured person can use the future employer’s statement in a Personal Injury Protection (PIP) claim.

The future employer’s statement can also be used to get compensation from the at fault driver’s bodily injury liability insurance.  Likewise, it can be used to attempt to get an uninsured motorist insurance settlement that includes future lost wages.

Maybe the injured person feels that the future employer is uncomfortable about writing an email that says that they would have hired you if you hadn’t been injured.  (This of course assumes that they would’ve hired the injured person.)

Perhaps they still want the injured person to work for the company.  Maybe they are OK with letting the injured person reapply once his or her injuries heal.

If the future employer won’t put a statement in writing, the injured person can hire an attorney.  Then, the personal injury lawyer can take a deposition of the future employer.  A deposition is testimony sworn under oath.

Future Employer Must Give Testimony After Injured Person Sues

However, an attorney can only take depositions after the injured person sues the at fault parties.  If the injured person sues and serves the defendants with the lawsuit, this results in $490 or so in immediate costs.  Additionally, the injured person’s attorney fee increases from 33 1/3% to 40% of the total amount recovered.

Let’s assume that a claimant has a serious injury.  Perhaps he or she has a broken leg or hand.  He or she may only be aware of a limited insurance.

For example, let’s assume that there is only $20K in available insurance with GEICO.  It happens to be an uninsured motorist insurance for the car that the injured person was a passenger in.   In this case, it is probably not worth filing a lawsuit just to get the prospective employer to say that they would’ve hired the claimant if he or she was injured.

Lady Gets $433,000 for Future Lost Earning Capacity

This isn’t my case.  A jury awarded $433,000 for future lost earning capacity for a 52-year-old woman, a registered nurse, who had a rupture of the quadriceps tendon.

Quadriceps muscle. Not from case.

She was a passenger on a Celebrity Cruises ship.  I assume that she was expected to work 13 more years (until retirement age – 65).  She also got $119,000 for pain and suffering.

She was attempting to board the tender (boat that takes the passengers to shore).  The tender was rocking up and down.

The tender struck her leg which caused her to fall and rupture her quadriceps tendon.  The accident happened on June 2012 and the verdict was on March 2005.

I believe that this was a very bad injury because the jury awarded her $60,000 for past lost earnings. Assuming that she could not work full-time for almost 3 years before her accident, she was making $20,000 a year.

Regardless of whether she was unable to work full or part-time, the huge lost wage award shows that this was a very bad rupture.

Lady Gets $30K in Lost Earning Capacity after Car Crash at Walmart parking lot

Check out a verdict where $30,000 was awarded for the lost earning capacity component of a lady’s lawsuit.  She was hurt in a car crash and had epidural injections to her neck.

The image below is an epidural steroid injection to the back, which is similar to the same injection to the neck.

Epidural steroid injection.

The accident happened in a Walmart parking lot in Florida.

Quadriplegic Man Gets $10 Million for Loss of Earning Capacity and Future Medical Expenses from Accident at Calder

A jockey was awarded $10 Million dollars after being rendered a quadriplegic.  It happened in a horse racing accident Calder Race Course in Miami Gardens, Dade County, Florida.

I talk about that case in my article about a landowner’s duty to warn of hidden dangers in Florida.

Which Injuries Are the Most Likely To Support a Loss of Earning Capacity Claim?

If you look at past verdicts, you’ll see that juries are more likely to award loss of future earning capacity in certain cases.

Therefore, an injured person is more likely to get a settlement for loss of future earning capacity if the injuries include surgery to fix a:

It doesn’t stop there…

The injured person is more likely to get money for loss of earning capacity with these injuries:

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