Lost Wages in Personal Injury Cases

Supppose you are injured because a driver rear-ends your car. You now have injuries, damage to your car, medical bills and time away from work. You are entitled to recover your lost wages AND your lost earning capacity.

This means that you can recover from the time you missed from work in the past AND the money you will lose in the future because you are no longer able to work as much, as well or as long as you did in the past. This is called "lost earnings capacity."

Interestingly, you do not need to show your actual earnings before or after the incident: Loss of earning power is an element of general damages which can be inferred from the nature of the injury, without proof of actual earnings or income either before or after the injury, and damages in this respect are awarded for the loss of ability thereafter to earn money." See Connolly v. Pre-Mixed Concrete Co.

Furthe, the test [for lost earning capacity] is not what the plaintiff would have earned in the future but what she could have earned. . . . Such damages are '. . . awarded for the purpose of compensating the plaintiff for injurysuffered, i.e., restoring . . . [her] as nearly as possible to . . . [her] former position, or giving . . . [her] some pecuniary equivalent.'

Impairment of the capacity or power to work is an injury separate from the actual loss of earnings." (Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 412 [196 Cal.Rptr. 117], original italics, internal citationsomitted.)

Pete Clancy is a personal injury attorney in Oakland. He was named a Rising Star by SuperLawyers Magazine for Northern California in 2010, 2011, 2012 and 2013. He is a Life Member of the Million Dollar Advocates Forum.