Loss of Earnings and Loss of Earning Capacity After a Personal Injury in New York

After an accident, you might be unable to work as you recover, or you might never be able to work as much as you did before. Permanent injuries and disability could cause severe financial strain for you and your family, but help is available: you may be entitled to compensation from the liable party or an insurance policy.

The NYC personal injury lawyers at Oresky & Associates, PLLC, will work with you to identify all the ways your injury has affected your income and fight hard to get the insurance company to pay that amount.

Diminished Earning Capacity and Lost Income after a Personal Injury

Loss of earning capacity and loss of earnings are two types of economic damages that accident victims often suffer. While they are similar, there is a key difference between the two:

• Loss of income is the money you have lost or will lose as you recover from your injuries.
• Loss of future earning capacity refers to the money you could reasonably expect to have earned over the course of your career but that your permanent injuries now prevent you from earning.

The amount you receive will depend on the extent to which your injuries affect your ability to earn a living.

Serious Injuries That Often Warrant Higher Lost Income Payouts

Part of calculating loss of earnings in a personal injury case is looking at how seriously you were injured. Generally, severe injuries are more likely to diminish your earning capacity. Examples of serious and catastrophic injuries that can significantly affect your earnings include:

• Brain injuries
• Broken bones
• Spinal cord injuries
• Amputation injuries
• Severe burns

That said, every case, even those that involve similar injuries, is unique and requires a personalized approach. Our New York personal injury law firm will help you figure out how to claim loss of earnings.

Proving Another Party Is at Fault for Your Lost Income After a Personal Injury

In some cases, you cannot recover compensation for damages until you prove that another party caused your injury. This involves proving the four elements of negligence, which are:

• Duty of care
• Breach of duty
• Causation
• Damages

These elements apply to all kinds of personal injury cases, whether you were hurt in a:

• Car accident or other motor vehicle collision.
• Construction site accident, including falls and machinery-related accidents.
• Slip and fall or other premises liability accident.

The attorneys at our firm assist clients who were injured in all of these types of accidents and more. Please note that in car accident cases, no-fault insurance benefits are available, as is workers’ compensation in job-related accidents.

Start Your Injury Case Today

For more information on how you can claim loss of earnings and other accident-related losses, call Oresky & Associates, PLLC, at (718) 993-9999.

Free Consultation

Loss of Earnings (Lost Wages)

Loss of wages is the amount you would have earned from the moment you were forced to stop working to the moment you are able to return to work as normal. Whether you are currently able to work part-time, light duty, or not at all, you are losing income, and you deserve compensation.

Your payout may include more than reimbursement for lost wages: workers who lost access to pension plans, union benefits, or health insurance while they were out of work can seek compensation for these losses as well.

Loss of earnings can have a devastating impact on your life. Your family depends on the money you earn. If someone else’s negligence prevents you from supporting your loved ones, our personal injury attorneys will make the liable party pay for your losses.

How Do I Prove Loss of Earnings?

To get compensation for lost wages, you must present evidence that shows your past and current inability to work is a direct result of the accident. Oresky & Associates, PLLC, will tell you more about how to prove loss of earnings. We will also collect as much evidence as is available, including:

• Medical records proving your injury prevented you from working.
• Documents proving your income before the injury, including tax returns, W2s, 1099s, income statements, etc.
• A statement from your employer verifying your wages or salary, the average number of hours you work, and how much you would have earned had you worked.

How Do I Get Compensation for Lost Wages?

That depends on what kind of accident caused your injuries. Your options could include:

• Filing a personal injury claim with the at-fault party: We will prove negligence caused your accident and seek justice by holding the liable party accountable for their actions.
• Filing a claim with your own car insurance policy: According to the New York State Department of Financial Services (DFS), your personal injury protection (PIP) policy covers loss of earnings caused by a traffic accident.
• Filing a workers’ compensation claim with your employer’s insurer: Workers’ comp benefits will cover a percentage of wages lost due to a work-related accident.

How Is Loss of Earnings Calculated?

There are multiple factors that go into calculating your loss of earnings:

• Comparative fault: Under CPLR 1411, your compensation from a personal injury claim will decrease as your share of responsibility for the accident goes up. You can, however, still recover some amount of damages. This is different from no-fault insurance like PIP policies or workers’ compensation, which allow you to claim lost wages regardless of fault.
• Your usual salary: You cannot recover more than what you were already earning or, in the case of workers’ compensation, a percentage of that amount.
• How long you miss work: If two injured workers make the same salary but miss work for different lengths of time, the one who was out longer will receive more money.

No matter which insurance company you file with, they are going to prioritize their bottom line over your well-being. If you try to face them alone, they will take advantage of their greater experience and resources and the pain you are in to pay you as little as possible.

Oresky & Associates, PLLC, will bring a personal injury lawsuit or work closely with our affiliated workers’ compensation lawyers to get you the money you need.

Future Lost Earnings (Loss of Earning Capacity / Future Lost Wages)

Diminished future earning capacity means that your permanent injury prevents you from earning as much money as you did before. Therefore, you are entitled to compensation for the difference between what you would have earned before the injury and what you can earn now.

Also known as future loss of wages, loss of earning capacity may refer to any of the following:

• You can never work again in any capacity.
• You can now only do part-time work or perform light duty.
• You can now only qualify for jobs that pay less than your old job did.
• You will need to retire sooner than you expected.
• Your condition will shorten your life expectancy.
• You can continue in your old job, but you will never be able to qualify for raises or promotions.

How Do I Prove Future Lost Earnings?

Future lost wages are often challenging to prove. First, you must have evidence estimating how much you would have earned had you not suffered a permanent injury and disability. You also need medical evidence explaining how your condition or injury prevents you from working.

The insurance company might request that you undergo an independent medical examination to verify your doctor’s assessment. Our legal team will consult our own experts, such as vocational rehabilitation specialists or economists, to confirm your diminished ability to work.

How Do I Get Compensation for Future Lost Wages?

Your options for recovering loss of earning capacity are more limited than they are for recovering loss of earnings. Under ISC 5102, PIP car insurance coverage pays for lost earnings but not for reduced earning capacity. You still have the option to:

• File a personal injury claim against a negligent party: Their insurance will cover all accident-related losses not covered by your own policy.
• File a workers’ compensation claim: The New York State Workers’ Compensation Board (WCB) allows you to seek permanent partial or permanent total disability benefits, depending on your condition.

How Are Future Lost Earnings Calculated?

If you were permanently incapacitated in any sort of accident, your compensation for lost earning capacity will depend on:

• Your previous salary
• Your education, experience, and skills
• Your overall health prior to the accident
• Your age
• The age when you would have retired
• Your life expectancy
• Your career or job
• The outlook for your career
• Expected rates of inflation
• Missed opportunities for career development and pay increases

The amount you pursue in lost future earnings is an informed, evidence-based estimate. However, since it is not a concrete number verified by paystubs or receipts, the insurance company may say that your estimate is inaccurate and refuse to pay what you ask for.

Oresky & Associates, PLLC, knows how to calculate loss of earning capacity so the insurance company does not get away with offering less than you deserve.

Seek Maximum Compensation for Your Lost Income

Our experienced personal injury attorneys know how much you depend on your salary, benefits, pensions, and other income. We will tell you everything you need to know about how loss of earnings is calculated, how to calculate an appropriate amount for loss of earning capacity, and how to confront the insurance companies.

Our bilingual firm has been providing transparent, comprehensive legal representation to the people of New York for over 30 years. Call Oresky & Associates, PLLC, now at (718) 993-9999 to get started.