Accident victims suffer in many ways, from physical pain to psychological trauma. Their family members and loved ones have harm caused by the victim’s injuries, as well. One type of damage that impacts both the accident victim and their family is the victim’s inability to work after the accident. This is recognized as a “lost wages” claim under both Illinois and Indiana state law.
Closely akin to lost wages damage claims are those involving the victim’s lost earning capacity as a result of the bodily injuries sustained in the accident. Under the law, “loss of earning capacity” is a recognized and independent damages claim that can be pursued in both Indiana and Illinois.
Lost Wages or Lost Time
From the instant that the victim is involved in the accident, from an on-the-job accident in an Indiana steel mill or an Illinois construction site to a Chicago pedestrian accident, personal injuries are sustained that the law respects as a basis for justice when negligence or wrongdoing is involved. At that moment, the person will lose their ability to work or do their job.
As long as this accident victim cannot return to work, they are harmed. State law recognizes this harm as “lost wages” or “lost time.” Documentation can be gathered to support a lost wages claim from the victim’s personal financial records. Lost wages are a form of economic damages that can be confirmed with things like payroll stubs, self-employment invoicing records, and the like. Even those victims who do not receive a paycheck may be able to recover lost time damages, as long as they are able to establish the value of their lost services with authenticated and admissible proof. It will be the accident victim’s responsibility to locate these documents to prove up their lost wages in any personal injury claim.
Lost wages or lost time can tally to a substantial amount if the injured victim survives the accident but has a long recovery and convalescence time. It is not unusual for accident victims to need several months, or even a year, to regain their full bodily functions after a serious accident.
From the Comments to the Illinois Pattern Jury Instruction 30.07:
With reference to past lost time, an injured party may recover for the time lost even though he was paid his regular wage during incapacitation. Hoobler v. Voelpel, 246 Ill.App. 69 (2d Dist.1927); Cooney v. Hughes, 310 Ill.App. 371, 34 N.E.2d 566 (1st Dist.1941) (loss incurred by unemployed plaintiff who provided services in the home); Jerrell v. Harrisburg Fair & Park Ass’n, 215 Ill.App. 273, 280 (4th Dist.1919) (plaintiff must present evidence of lost earnings, time, or wages); Wever v. Staggs, 264 Ill.App. 556, 564 (3d Dist.1932) (homemaker’s lost services are a proper element of damages if value of lost services is established); McManus v. Feist, 76 Ill.App.2d 99, 106-07; 221 N.E.2d 418, 421-22 (4th Dist.1966).
Lost Earning Capacity
In comparison, “lost earning capacity” is a different type of damage that may be asserted in the accident victim’s claims. When the person has suffered permanent harm or death in a catastrophic accident, then they will never be able to recover and live as they did before the event. Their bodily injuries have resulted in a permanent change, and they cannot do the same work that they did before the accident or planned to do.
The accident has limited their ability to earn a living in the future. In both Illinois and Indiana, this is defined as a claim for “lost earning capacity.” These damages can be awarded even if the accident victim was not employed at the time of the injury. Proving these claims is not as easy as it is for a lost wages claim.
Often, the victim will need the support of expert testimony to confirm the extent of the permanent injuries and how they have caused a diminution of their capacity to earn. Expert analysis of things like (1) the victim’s skills, talents, education, and experience as well as (2) future market values in the lost area of work or career, will be needed.
From the Comments to the Illinois Pattern Jury Instruction 30.07:
The second portion of this instruction includes diminution of the plaintiff’s capacity to earn. It may be based upon inability to earn in occupations or fields of endeavor like or unlike his past earning experience, so long as his lost capacity to earn is established by the evidence. Consequently, damages incurred as a result of impaired earning capacity are not necessarily measured by proof of past lost wages. Buckler v. Sinclair Ref. Co., 68 Ill.App.2d 283, 216 N.E.2d 14 (5th Dist.1966). The element of damages for future lost earnings does not depend on whether the injured party was employed on the date of the occurrence. Casey v. Baseden, 131 Ill.App.3d 716, 475 N.E.2d 1375, 86 Ill.Dec. 808 (5th Dist.1985), aff’d, 111 Ill.2d 341, 490 N.E.2d 4, 95 Ill.Dec. 531 (1986). The instruction may also be proper even though he was employed at the time of trial and earning more than at the time of his injury. Jackson v. Ill. Cent. Gulf R. Co., 18 Ill.App.3d 680, 309 N.E.2d 680, 688 (1st Dist.1974). On the issue of present cash value, see the 34.00 Series.
Examples of a permanent bodily injury suffered by an accident victim that forms the basis of a lost earning capacity damage claim can be things like the loss of a limb; an amputation; or damage to the central nervous system from a spinal cord injury or a traumatic brain injury (“TBI”).
Example: TBI
TBIs are all too often the result of on-the-job accidents like construction site falls, where the victim suffers what researchers describe as “…permanent or temporary impairment of cognitive, physical, and/or psychological functions.” Read, Agrawal, Sujan Narayan. “The Pathophysiology of Traumatic Brain Injury (TBI): A Review.” Asian Journal of Research and Reports in Neurology 4.1 (2021): 1-10.
Explains the study:
Traumatic brain injury (TBI) is an insult to the brain from an external mechanical force…. It accounts for approximately 40% of all deaths from acute injuries. The economic burden due to loss of earning capacity is tremendous. It affects all age groups, but the main victims are the adults in the prime of their life.
For more on brain injuries, read:
- Brain Injuries Suffered in Accidents: Concussions Can Be Serious
- Head Injury in an Accident: Varied Causes of Permanent Brain Injuries
- Traumatic Brain Injury Accidents: the Cost of Care and Treatment.
Example: Amputation
In a great many industrial accidents, workers are placed in dangerous environments where the risk of permanent injury requiring the amputation of a thumb, finger, hand, arm, toe, foot, or leg is all too high. When a tragedy involving things like machine guard accidents happen, the worker must face a life with the physical and psychological trauma of an amputation.
For these workers, lost earning capacity is a common element of their total damages claim. The amputation will be shown to have clearly altered the individual’s ability to earn a living in the future.
For more on amputations, read:
- Traumatic Amputations in Industrial Accidents
- Amputation Injuries from On-the-Job Work Accidents in Indiana or Illinois
- Amputations and Motor Vehicle Accidents in Indiana or Illinois.
Claims for Lost Wages and Lost Earning Capacity After an Accident in Indiana or Illinois
When someone is injured or killed in an accident that can be shown to have resulted from the wrongful acts of another, then both federal law and the state statutes of Indiana and Illinois may have avenues for justice available for that accident victim as well as their loved ones. Personal injury laws, workers’ compensation statutes, and Wrongful Death Acts may offer recompense.
These claims will usually involve damages to the victim based upon lost wages or lost time, as well as the more complicated-to-prove lost earning capacity. These are viable damages claims for most accident victims and these victims need to know they are available to them.
Victims and their loved ones also need to know that the victim will have the legal responsibility not only (1) to assert the right to their payment by the wrongdoers who breached duties of care and safety, but (2) to prove up the damage claims in their entirety with evidence the victim has located and produced, including that of expert analysis of each element of the lost earning capacity claim amount.
For more, read:
- The Two Main Differences Between Workers Compensation and Personal Injury Claims for Accident Victims in Indiana and Illinois
- Fatal Accidents and Wrongful Death Lawsuits in Indiana and Illinois
- What are Legal Damages After a Work-Related Accident in Indiana or Illinois?
- Damages Available After a Pedestrian Accident in Chicago
- Who Can Claim Damages After a Work Accident in Indiana or Illinois?
- Workers Beware: BLS Reports Highest US Worker Death Rate in 5 Years.
In Indiana and Illinois, accidents change lives every day often with deadly results here in our streets and in our workplaces. Never have our workers faced a greater risk of a catastrophic or deadly work accident than they do today. Please be careful out there!
