Can I recover from income I’ll likely lose in the future?
Yes. This is known as a loss of earning capacity claim. In many cases, in addition to present income loss, you may suffer earnings loss in the future - or loss of earning capacity. For example, you may be 45 years old and your injuries may be so severe that you cannot return to work. If your normal work life expectancy was 20 more working years, then you should attempt to recover damages for those 20 years lost.
Earning capacity is the ability to earn income, as opposed to the actual loss of income itself. To recover damages for loss of earning capacity, you don’t have to be employed at the time of the accident, but rather it is the loss of potential earnings based on what you likely would have made had you not been injured.
Keep in mind that to recover this damage you must be able to show such a recovery is reasonable based on your potential earning ability. In other words, you cannot recover income lost from an inability to play professional tennis unless you can reasonably show you would have played in professional tennis tournaments but for being injured.
Also, you have what’s called a duty to mitigate, or minimize, the income lost as a result of being injured. In other words, to use our professional tennis player analogy again, you may not be able to enter tournaments and compete because your left eye is injured, but perhaps you could earn a wage instructing others how to play. By doing so, you’re taken steps to reduce the income lost by not being able to enter and play in professional tennis tournaments.
Keep in mind you must take reasonable steps to care for injuries so as to prevent further aggravation. If attempting to mitigate damages may ultimately lead to making your injuries worse, naturally you should not be expected to undertake employment beyond the physical limitations established by your doctor.How might vocational experts help determine my loss?
Forensic economists are vocation experts that look at such factors as age, physical or mental impairments, employment history, job skills, education, and earnings history, to name a few variables, in order to calculate a future earning capacity loss. The experts then construct a profile of past and present economic facts to formulate the income you will lose in the future, using work-life expectancy tables (if you will never work again), earnings of others with your education and experience levels, inflation, social security and other benefits, plus other statistical data.Return to Personal Injury FAQs