Often, injured persons may be out of work for a period of time as a result of automobile accidents. If this happens, they may receive 60% of their lost wages up to the amount stated under their Personal Injury Protection (PIP) coverage.
It is important to note, however, that the total PIP policy limit is dispersed to pay payment of lost wages and reasonable medical expenses.
You must have a valid wage loss
To have a valid wage loss claim, you must have documentation of the actual loss. It does not matter whether you are the insured or the claimant. You will be responsible for providing the information to the insurance company.
If you work for an employer, just documenting your hourly wage and/or the days you were incapacitated will be sufficient for a successful wage loss claim. If you are self-employed, proof of your loss is more difficult and you will need the experience of a seasoned personal injury attorney.
The insurance company will usually send you a medical authorization form (to find out who your current medical providers are) and an employment authorization form (a form where you express consent to have the insurance company contact your employer and allow your employer to give detailed information regarding their employment and/or compensation rate).
You must read carefully the medical authorization form they send you. The language of these forms is very broad and you should restrict how much information you want to provide to the insurance company. The form gives the insurance company complete and unrestricted access to your entire medical history (which can be very intrusive and probably more than you would like them to see).
Documentation from your doctor that supports your inability to work must go on the record. This will allow the insurance adjuster to document and pay your loss of wages claim. If you do not have a doctor’s note, then you could face some difficulties in trying to get your wages paid.
Adjusters do not always want to pay the full value of your claim. That is why it is important to have an experienced attorney like the ones at The Law Offices of Rue & Ziffra.
Insurance adjusters will try to discourage you from making any type of claim. Telling you that they will contact your employer is a subtle way to discourage you from arguing loss of a wage loss.
What happens if you were on vacation? Does the loss of wages claim still exist?
The objective of insurance (and tort law for that matter) is to place the injured party in the position they would have been in had the accident never happened. It is impossible to do this. No one or nothing can ever give you back the time you lost pain free. However, the insurance company must do the best they can to get you as close as they can to that pre-accident condition.
So if you are in a vacation, were there any wages lost? Although there may not be a wage loss, you have spent your vacation time to recovery from an accident and you are entitled to compensation for the loss of your vacation time. Most courts have agreed that insurance companies should pay for the days that you could not do the normal activities you were planning to do in a vacation at the rate you would have been paid if you were at work.
Wage loss for independent contractors, employees in commission and for the self-employed.
These are the most complicated form of wage loss claims and will be difficult to prove. Your tax returns will be subject to scrutiny to try and prove your loss since you do not have an employer to verify your specific income. Although this may seem unfair, you must be able to prove any losses you have sustained. Therefore, as a self-employed person, you must keep careful records in case this type of thing may occur in the future. You must also get documentation from your physician that you cannot do the same type of work you did in the past if you had not been injured.
It is hard to calculate income. A Realtor that does not sell a house could claim that his entire commission was lost due to the car accident. Consequently, claims adjusters will quickly point out that normally a house takes time to sell and that it typically takes 30 days to close a deal. The adjuster may try to show that the accident did not cause the loss of the commission. Under most circumstances, the insurance company will prevail with this argument.
The independent contractor and the self-employed have similar difficulties. Did they lose a job in which they would have made $3,000 because of the accident? Or was it for any other reason? Most of the time a deal is not completely lost because of one missed appointment. However, it is important that you keep track of every detail of jobs that you would have been offered so you can show that as evidence later, if needed.
What if the contractor is unable to finish the work because of the injury?
The contractor must show by the preponderance of the evidence that the injury caused the delay or cancellation of the specific job and/or project. But the fight would not be over that instant, the insurance company will seek protection under the legal concept of mitigation of damages.
What did the contractor do so that the delay on the contract was not significant? Why did she/he not hire someone to finish the job on time? Believe it or not, the law will put an affirmative duty on the injured party to prove this loss.
The insurance company will make you document every detail of your wage loss and if you cannot prove your loss, you will not be reimbursed. Even if you can prove that you had a wage loss, they may still ask if you tried to mitigate your loss by hiring someone to assist you with the project or job or delayed the job until you completed your treatment.
If you cannot possibly provide documentation of your projected income or your actual loss, you could submit relevant information from your federal income tax return. This way you could add up what you made in a year and divide that by the amount of workable days (not 365 days since you did not work every single day the prior year). This will give you a rough estimate of your income per day.
It is very important that the wage loss must be related to the injury. In other words, if you had a car that was a total loss and you had to spend days finding a rental car (away from your workplace), this would not be valid wage loss claim (at least in the eyes of the claim adjuster). They will only pay if you physically could not work due to your injuries sustained in the collision.
Again remember this, the fact that the insurance company may not want to pay for lost wages even if it were related to a car accident does not mean that you cannot successfully claim this in a court of law. However, the process of litigation takes a long time and you have to weigh whether or not your wage loss is worth pursuing over a process that may take several months or years.
Loss of Earning Capacity
In the case of a loss of earning capacity claim, you generally need to show proof that you have a permanent injury resulting from the injuries sustained in that particular collision. Also, it is typically made when there is an injury that obviously hurts your ability to work in your current profession. This will also need to be documented by you and possibly a team of medical professionals and experts that testify in the wage loss capacity such as an economist. This is something that you will need to consult with a law firm that has experience with this type of situation like the lawyers at The Law Offices of Rue & Ziffra.
If you work in an office and you type files, but due to the accident your production is less, then you are more likely losing the ability to be promoted or to continue your occupation. If you lose your ability to “do the same thing” or the ability to advance in your current employment position, then you may have a valid loss of earning capacity claim. An example may be a teacher whose voice was damaged due to an accident, or a dancer that had a loss of a limb that would keep him from continuing in the same line of work.
If you are a model or actor and your face has a permanent scar because of the accident, then you are probably less likely to be hired because of this permanent injury. It does not matter that the scar was or was not painful. It is the scar’s ability to hurt someone’s employment that is the issue. If you are a typist and have a scar on your face because of the accident, then the loss of earning capacity claim will most likely fail because the injury is not causally related to the ultimate damage.
A loss of earning capacity claim is difficult to make and requires great skill to be successful. You may need to hire a highly trained professional like an economist to evaluate the present value of your loss of earning capacity. He will determine your loss using a highly complex mathematical formula that takes into account several variables like age, gender, inflation, etc. These professionals usually end up in front of a jury defending their calculations.
You can also consider the option of allowing a professional hired by the insurance company to retrain you in another field that would pay you about the same as your current salary. Both options above have many complications. The first one will be highly disputed and would be dragged through the courts with a lot of legal expenses. And the second one makes you go to school and learn something else you might not be in love with.
Loss of Business Income
Loss of business income is a claim that can be made when there is a bodily injury or a property damage claim. The obvious requirement for this claim is the “business” part.
You must have a business before you can make a claim for loss of business income. Independent contractors, self-employed persons, and/or people that earn a living on commission-based jobs can make this claim (they would make this claim as opposed to a wage loss claim).
Some injuries you sustain (or damages to your tools) will make it so you cannot earn as much as you were earning before the accident and you may be owed for the earnings lost. A loss of business income is one of the most complex claims to argue and you have to show the insurance carrier that you sustained an actual monetary loss.
The insurance company will make you show documentation about your income. The issue really is that when you are self-employed, work on a commission-paid basis, or are an independent contractor this can be a very difficult thing to prove. The fact that you have a business sometimes means that you can make money while you are physically not at work.
It can also mean that you have no income at all during certain periods of time, or that not only are you not bringing income, but you have expenses and bills that will go unpaid because you cannot produce anymore. If you are an independent contractor you would have to show that you had jobs lined up after you finished the current work or jobs that you could not start because of the accident.
If you are a dentist, you will have to show that you moved your appointments and that your dental assistants could not possibly or legally perform on your behalf (a cleaning).
If you are a Realtor, then you are going to be faced with a lot of issues in showing your wages. A house takes more than a week to sale and there are many factors that could delay the closing date (financing, home inspection, appraisal, etc.). The insurance adjuster will be quick to tell you that there is not enough evidence to support your payment for your loss of commissions and this means you will need the assistance of an experienced attorney like the ones at Rue & Ziffra.
The real issue will be proving your damages. The insurance carrier will make many arguments to not pay what they owe you for. They will ask you for documentation and a note from your physicians indicating you could not perform the duties required in your job.
They will want to see medical records that justify your being out of work. They will also want to see the entire financial picture of your business. The most common and fair resolution is to show your personal income tax form. If you can show how much you earn solely by your work (not real estate, investments, dividends, savings, SSI, disability, etc.), then you are going to show that number divided by the days you could not work. This will give you an average salary per day.
If your loss of business income is greater than what the average income per day was (say your work is seasonal), then you have to present proof to be able to show to the carrier why you should be paid more. Also, you could add two or three years of tax data to make your numbers look much closer to reality.
There are obviously problems with this approach. If your business is just starting to be successful, then you could have problems showing that your actual loss income (now) should be more than the past taxes can show. Whatever your argument is, make sure you have a way to show documentation or actual evidence of your loss.
Your insurance company knows that if you cannot show paperwork to them, then you cannot show paperwork to a court of law.
Pain and Suffering
Pain and suffering is by far the most common and most litigated form of damages. It is usually claimed in accidents where physical injuries exist.
Pain and/or suffering falls under the remedy of compensatory general damages section of tort law. “General” is part of the definition because when there is a tort (like negligence), damages like pain and suffering generally “flow out of the tort”.
General damages (pain and suffering) are very subjective and difficult to calculate.
How much is your headache worth? How much is the pain you feel every day worth? How much is it worth that you could not clean your house, go on your vacation or enjoy activities with your family?
How does a claim adjuster differentiate between the people that claim they had a headache and those that legitimately had one? This is the main reason why most injury claims end up in court.
Claim adjusters are trained to understand most types of injuries. They know the most common conditions that come out of a car accident. More experienced adjusters deal with more severe and rare medical conditions that could be caused by car accidents.
Their training is by no means technical. It is nothing more than looking over medical dictionaries and reading medical records (things we all can do without formal education).
Many attorneys try to multiply by 2 or 3 the amount of the medical bills and then come up to a value for pain and suffering, but this is incorrect. Some injuries that have little medical expenses can have a big impact in someone’s life. For example, a 14 year old girl with ten stitches on her face would cause embarrassment, self-esteem problems, deprecation, etc. in probably one of the most important years of her life (high school).
The cost of ten stitches is “low” and multiplying this by two or three will not yield the amount that will compensate for the pain and suffering this girl will have. Even if you add reconstructive surgery costs to the multiplication, the result would be less than what she may be entitled to.
You are entitled to pain and suffering if your pain is permanent and it was caused by the collision in question (according to Florida law). Pain and suffering will only cover the pain brought by the injury (neck pain, back pain, etc.).
You are not entitled to recover pain and suffering if you caused injury to yourself.
If you are driving and your negligence caused you to be harmed, your insurance will pay for your medical bills (provided that you have PIP coverage on your policy), but there will be no payments to you for pain and suffering. Your passengers however will be entitled to recover for this type of damage even if they are family member and/or spouses.
In any situation, pain and suffering is determined by you and by you alone. You must establish how the accident affected your life. For this reason it is critical that you look at your treatment calendar, figure out how many times you were treated, how often you were treated, and how many doctors you have to see. How much has this accident impacted your life?