Lost wages are a vital part of an injury claim. One very difficult part of recovering these damages is proving what will happen to a victim’s ability to work far into the future. A recent case is a reminder of how important it is to provide sufficient evidence to a jury as to a victim’s inability to continue to work in a field or profession into his or her retirement years.
Victim Tries to Prove Lost Earning Capacity
The victim testified that he had begun working as a plumber after his accident. His work was very physical, and he testified as to his hourly wage, but that wage was the same as it was before the accident.
He testified that he feared that he could be laid off at any time due to the amount of work that his company had, and if that was the case, because of his injuries sustained in the accident, he was doubtful that he could ever find work elsewhere as a plumber. However, at the time of the trial, he was still working, for the same hourly rate as he was earning before the accident, and he said that he was physically capable of doing the work in his job application, which was filled out after the accident.
The jury did award him a significant amount for loss of future earning capacity, apparently finding that his injuries would prevent him from working until retirement age, as he testified that he otherwise would want to do. The defendant appealed this decision, and the case went to the Florida Supreme Court.
Supreme Court Discusses Legal Standard
The Supreme Court determined that the jury’s award of future wage losses must be overturned as there was insufficient evidence to support it. In doing so, the Supreme Court reiterated longstanding Florida Law about how victims prove losses of future earning capacity.
The Supreme Court noted that the victim proved that he had a permanent injury, which surely is important when trying to support a request for future lost wages or earning capacity. However, that alone was insufficient. A victim has to show that the capacity to engage in labor has been diminished by showing either that he or she cannot do the work he or she did previously, or that the amount of years the victim otherwise would be able to work has been reduced.
Testimony that someone cannot work, or will not be able to work in the future, cannot be speculative. A victim must provide the jury tangible numbers or some standard to measure or calculate a future lost wage award.
Difficulties in Proving Lost Earning Capacity
Future lost wages are awardable because the law recognizes that we all should be able to work in our given profession, and to earn a living, until at least retirement age. When a victim immediately cannot work—such as after a catastrophic or crippling accident—showing lost future income is somewhat easier.
However, future lost wage cases can be difficult when the victim is still working, but does not believe that he will be able to do so until normal retirement age.
For example, someone with a back injury who works in a strenuous vocation may be young and vigorous enough to work through the pain in his younger years. However, the nature of the injury may be such that we know that as the person gets older, his back injury will get worse, or make him weaker before he normally would have had he been healthy. Perhaps it will induce early onset arthritis, or weaken the muscles and bones around the injury, when the now 25-year old victim hits age 40.
As you can see, the problem is giving a jury a “crystal ball” to see the victim’s future, and showing the jury how this person will degenerate faster than his non-injured peers.
Experts are Usually Needed
Experts are vital to this kind of evidence. Medical experts are necessary to explain to a jury how an injury affects a human body years into the future. The expert must consider the exact nature of the injury, and how it would affect the person’s work.
Although usually we talk in terms of physical injury, mental or cognitive injuries can lead to losses of future earning capacity as well. Injuries to the brain or body which may cause early onset dementia, or which cause a brain injury that is expected to worsen, also qualify a victim for future lost wages, assuming again that enough evidence can be shown to a jury to support such a claim.
Experts also may be needed to actually calculate future lost wages. It is not enough to multiply salary by the working years expected to be lost. Inflation, expected promotions in the victim’s field, the value of investments or retirement and income earned on the income, all must be evaluated to make sure a victim is receiving exactly the value of the lost future wages.
If you have been injured in an accident make sure that the jury hears the evidence necessary to demonstrate your damages. Contact Brill & Rinaldi today for a free consultation to discuss your injury case.