Proving Lost Earning Capacity in Court

I’m Katelyn Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question was prompted by the subject of lost earnings capacity damages addressed in an earlier podcast. That episode prompted a question about how one actually goes about proving such a claim.

The elements of proof necessary to establish a claim for loss of earning capacity as an element of damage are pretty simple:

1. Proof of the existence of some earning capacity–either actual or potential — before the injury:

– In other words, proof of the claimant’s track record or earnings history comes into play. Imagine a musician who has a band. When that musician suffers a hand injury and can no longer play piano or guitar, we will want to see what was earned playing at concert venues in the past.

2. Proof that this earning capacity has been lost or diminished:

– Here, the plaintiff needs to establish that the capacity to earn has been restricted or impinged. Imagine the same musician can no longer perform because their hand is broken and cannot play concerts anymore.

3. Proof that the cause of the lost or diminished earning capacity is proximately caused by the injury:

– Here, our example musician needs to establish with medical proof that the injury to the hand was suffered in the car crash or other injury event.

4. Proof of the dollar amount of the loss:

– An economist may be of help in making this calculation. In our musician example, proof could be that the rest of the band became hugely successful, but since the injury plaintiff had to leave the band, they lost out on the success the others enjoyed.

Factors to be considered include:

A plaintiff’s physical condition before and after the injury. The plaintiff’s age and life expectancy before and after the injury incident. Previous earnings history. Work record. A calculation of the reasonable amount the plaintiff probably would have earned absent the injury. And the probability he would have continued to receive earnings over the balance of his working life.

Pretty simple right?

Maybe not so simple.

Suppose our example, the musician can no longer play in the band. However, they can write songs. They still earn a percentage of the band’s success going into the future, just a smaller percentage.

As you can see, the simple can become complex depending on the precise circumstances.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”