Construction accidents can impact much more than the paychecks you miss while recovering. For many injured workers, one of the most significant financial losses is the reduction in earnings over the rest of their careers. Fortunately, laborers who pursue third-party claims for damages can seek the value of their lost earning capacity.
Calculating these damages is complex. Factors such as your age, work history, expected career path, medical limitations, and future employment opportunities all play a role. In many cases, economists and vocational experts help estimate the long-term financial impact of a construction injury.
What Is Loss of Earning Capacity?
In a construction injury settlement or verdict, loss of earning capacity refers to the reduction in a person’s future earning potential caused by an injury. A loss of earning capacity claim for a construction worker in NY accounts for the difference between what the worker would likely have earned over their career and what they can realistically earn after suffering an injury.
A worker does not have to be completely unable to work to experience a loss of earning capacity. In many cases, the injury limits the type of work that can be performed, reduces access to higher-paying jobs, or makes it difficult to continue working in the same trade.
Loss of earning capacity attempts to measure that difference and account for the long-term financial impact of the injury.
Lost Wages vs. Loss of Earning Capacity: What’s the Difference?
Lost wages and loss of earning capacity are related, but they are not the same thing.
Lost wages compensate an injured worker for income they were unable to earn because they missed work after an accident. Loss of earning capacity focuses on the future rather than the past. It considers whether the injury will affect the worker’s ability to earn income in the years ahead. In some cases, these future lost wages from a construction accident in NY far exceed the income lost during the worker’s initial recovery period.
How Is Loss of Earning Capacity Calculated?
Earning capacity calculation in NY often involves a detailed review of a worker’s professional and medical circumstances. Some of the factors commonly considered include:
Age at the Time of the Accident
The financial impact of a construction injury is often measured in years rather than months. A worker injured at age 35 may have expected to remain in the industry for decades. If the injury permanently limits their ability to earn income, the loss extends far beyond the wages missed during recovery.
That does not mean an older worker cannot recover substantial damages. Age is only one factor in the analysis. The key question is how the injury affects the worker’s ability to earn income over the remainder of their expected working life.
Earnings History and Work Experience
Past earnings often provide an important starting point for evaluating long-term earning potential. A worker’s wages, employment records, certifications, training, and work history help establish what they likely would have earned had the injury never occurred.
For construction workers, this analysis also accounts for:
- Overtime opportunities
- Specialized skills
- Union membership
- Future raises
- Promotions
- Union benefits
- Retirement contributions
- Vacation pay
- Advancement within a trade
Experts also evaluate the value of pension or annuity contributions, as well as other employment-related benefits that could be affected by the injury. The goal is not simply to look at what the worker earned before the accident but what they reasonably could have been expected to earn in the future.
Future Employment Opportunities After the Injury
One of the most important questions is what work remains available after the injury. This issue is particularly important in construction, where many trades require workers to climb ladders and scaffolds, lift heavy materials, operate equipment, work overhead, or spend long hours on their feet.
In many cases, the worker is still capable of earning income. The challenge is that the jobs available after the injury may not offer the same pay, benefits, or opportunities as the work they performed before the accident.
Medical Evidence and Permanent Restrictions
Medical records play a critical role in determining how an injury affects future earnings. Doctors provide opinions regarding permanent impairments, work restrictions, future treatment needs, and the worker’s long-term prognosis.
Restrictions on lifting, climbing, standing, balance, or repetitive motion significantly affect a construction worker’s ability to perform certain tasks. These medical limitations often form the basis of a loss of earning capacity analysis.
Economist and Vocational Expert Testimony
Complex loss of earning capacity claims frequently involve expert testimony.
A vocational expert for a construction injury case will evaluate a worker’s education, training, job skills, and physical limitations to determine what types of employment remain available after an injury. Economist testimony in a construction case helps estimate the financial impact of the worker’s reduced career prospects over time, taking into account factors such as expected wage growth and other long-term economic projections.
Their analyses help explain how an injury affects future earnings and provide a framework for calculating long-term economic losses.
What if I Retrain Into Another Trade or Career?
After a serious injury, some construction workers transition into lighter-duty positions, supervisory roles, office-based work, or entirely different careers. While these jobs may allow them to remain employed, they do not always provide the same income, benefits, or opportunities for advancement as the work they performed before the accident.
The focus is not simply on whether an injured worker can find another job. The question is whether the injury has reduced the worker’s ability to earn a living in the future. In many cases, that analysis remains important even after a worker returns to the workforce.
Off-the-Books Laborers Still Have Rights to Lost Earning Capacity
Some injured construction workers worry that being paid in cash will prevent them from recovering compensation for lost income or loss of earning capacity. When assessing losses, experts look at proof like:
- Bank records
- Tax returns
- Employment records
- Testimony
- Work schedules
- Union records
- Statements from employers, coworkers, or other witnesses familiar with the worker’s earnings
While cash payments can create evidentiary challenges, they do not automatically prevent a worker from pursuing these damages.
Real Construction Accident Cases With Long-Term Financial Consequences
Construction workers help build New York. They take on physically demanding work every day, often in challenging and hazardous conditions. When a construction-related accident leaves a worker seriously injured, our attorneys believe they deserve experienced legal representation and an advocate who will fight for the full extent of their losses.
At Oresky & Associates, PLLC, we have spent decades representing injured construction workers and their families throughout New York. Over that time, we have seen how a serious construction accident affects every aspect of a person’s life—not only their health, but their livelihood, independence, and ability to provide for the people who depend on them.
A Union Carpenter Could No Longer Return to His Trade
A 48-year-old union carpenter was working on the construction of a luxury residential building in New Rochelle when he fell approximately 15 feet from a scaffold. The accident occurred after the required fall protection was not provided, leaving him with catastrophic injuries to his neck, back, leg, knee, wrist, ribs, and ankle.
Despite undergoing multiple surgeries and extensive medical treatment, he was left with chronic pain, permanent mobility limitations, and injuries that prevented him from returning to work as a union carpenter. For skilled tradespeople whose livelihoods depend on physical strength and mobility, losing the ability to continue working in their profession can have lifelong financial consequences.
Our attorneys established that the property owner and contractor failed to provide the fall protection required under New York law. A Bronx jury awarded the injured worker an $18 million verdict, recognizing not only the severity of his injuries and extensive treatment but also the lasting impact the accident had on his ability to earn a living.
A Long Island Scaffold Collapse Left a Roofer Unsure About His Future
A roofer, who was working approximately 25 feet above the ground installing slate roofing materials, was hurt when a scaffold bracket detached from the structure and collapsed beneath him. The fall left him with catastrophic injuries to his head, neck, and spine. He underwent emergency surgery involving spinal fusion, decompression, and internal fixation, followed by a lengthy hospitalization and ongoing treatment with specialists.
For construction workers whose jobs depend on strength, mobility, balance, and endurance, serious spinal injuries create lasting uncertainty about future employment and future financial opportunities. Our team secured a $1.35 million settlement to help address the roofer’s long-term medical needs and loss of earning capacity.
The numbers tell only part of the story. Behind each case is a worker who was forced to confront physical pain, financial uncertainty, and the possibility that life after the accident would look very different than life before it.
Frequently Asked Questions
Can I Recover Loss of Earning Capacity if I Am Still Working?
Yes. In many cases, an injured construction worker returns to work but can no longer perform the same duties, work the same hours, or earn the same income as before the accident. Loss of earning capacity focuses on how an injury affects career prospects, not simply whether a person remains employed.
Can I Receive Compensation for Jobs I Planned to Do in the Future?
Potentially. Loss of earning capacity claims are not limited to a worker’s current position or salary. Factors such as expected career advancement, specialized training, certifications, promotions, and future opportunities within a trade are considered when evaluating expected lifetime earnings. However, these projections must be supported by evidence rather than speculation.
Can Undocumented Workers Recover Loss of Earning Capacity Damages?
An undocumented immigration status does not prevent an injured construction worker from pursuing compensation after an accident. Like laborers who are paid off-the-books, undocumented workers still have the right to seek damages for injuries and related financial losses. Workers should not assume they are ineligible for compensation based solely on their immigration status and should discuss their situation with an attorney.
Let Us Help You Plan for Life After a Construction Accident
After a serious construction accident, the greatest financial challenge is often not the wages lost during recovery, but the impact the injury may have on earning potential and long-term financial security.
At Oresky & Associates, PLLC, we have spent more than 30 years helping injured construction workers throughout New York navigate these challenges. We understand that behind every claim is a person trying to move forward after a life-changing event and a family looking toward an uncertain future.
If you have questions about loss of earning capacity or your rights after a construction accident, contact Oresky & Associates, PLLC, at (929) 209-4492 for a free consultation.