Search Site
Menu

Loss of Earning Capacity

By now you would have heard or are familiar with the fact that loss of earning capacity is an element of your damages. Specifically, it is an element of special damages as is the reasonable value of the medical services provided to you. Let’s focus today on the loss of earning capacity and the basic concept behind it.

When a client is seriously hurt and unable to work the question I ask the client is, “How long would you have worked had this accident not occurred?” Another thing I might ask is, “Had you been able to work would you have been entitled to bonuses or various stock options or perks or other fringe benefits?” It has surprised me, but sometimes there is a little bit of confusion on this point. I guess the simplest way that I can frame the issue is by asking the client, and by presenting to the other side, the idea that had this accident or injury not occurred, the client would have worked until 67 years of age (or some other reasonable time period). Therefore, the client has lost those years in the labor force at their rate of compensation. You then do the arithmetic and you multiply the years by the gross annual salary. The judges will inform a jury and your adversary will tell you that it has to be reduced to present value, which recognizes that a one-time award is being made at the case’s conclusion. Present value, is an economic concept, accepted in the courts and very much part of the judge’s charge, or instruction, to the jury.

None of this necessarily requires an economist or a vocational rehabilitation expert. I think the concept is sufficiently clear and it has been deemed such by courts so that expert testimony is usually not necessary in most of these instances. See Griffin v. General Motors Corporation, 380 Mass. 362 (1980), which discusses the right to “past and future impairment of earning capacity” and goes further to say that most of that is “within the common knowledge of the jury”. Therefore, even though I am an attorney who favors the hiring of experts – and I would say that I am fairly aggressive in that respect- for this element of damages, I am disinclined to hire them in light of the clear language of the Supreme Judicial Court and because of tactical considerations.

For a long time now, the Superior Courts of Massachusetts have allowed the presentation that I put forth in the above paragraph. Some lawyers have presented those numbers on a blackboard (at least in the old days but the point is that it was done visually) and those numbers have remained through the closing argument and even after, such as during the Judge’s charge to the jury. Some aspects of this are discretionary as the Supreme Judicial Court is willing to defer to the trial judges on the length of time the figures can remain on the blackboard. But the rest of the presentation is not discretionary and should be made by your lawyer in the appropriate case. Goldstein v. Gontarz, 364 Mass. 800 (1974).

In summation, the key point that I want to make today is that you want to clear all the complicated stuff away to focus on the simplest and clearest framing of the issue of loss of earning capacity. I find that you will then ask of the client, “What would you have done had the accident not occurred?” “How long would you have worked?” ” What kind of money would you make?” Sure there are disputes about the level and adequacy of the proof. For certain people it is more complicated because of things like bonuses and stock options but again you say to that person, “Tell me what would you have earned had you not been injured?” That is the concept that should run through the entire loss of earning capacity element of a personal injury claim.

Feinberg & Alban, P.C. fervently protects your rights
  • The Boston firm of Feinberg & Alban, P.C. specializes its practice in the area of personal injury.

    The attorneys serve the entire state of Massachusetts in addition to affiliating with lawyers in other states to handle cases outside of Massachusetts.

  • $7.7 Million Award for Feinberg & Alban Client in Personal Injury Trial

    Boston Attorneys Win Highest Injury Verdict in Massachusetts in 2011 & 2012.

Client Reviews
  • google
    5.0/5.0

    I suffered injuries and total loss if my car last year in a head on collision. Colleen Santora took my case and fought well on my behalf. She thoroughly answered all my questions and concerns, always responding in a quick and timely manner. She helpe...

    Read more

    Jessica Matt

  • google
    5.0/5.0

    Choosing Feinberg & Alban was probably one of the best decisions I ever took. Robert Feinberg and Perry Feinberg are amazing in their professionalism as well as in compassion. Perry was the lead attorney for me. He was always responsive to any questi...

    Read more

    Raja Bhattacharyya

  • google
    5.0/5.0

    I would like to express my gratitude to Feinberg & Alban PC. They are great people and professionals. If you need an attorney these are your guys. Thank you so much! Tatiana

    Read more

    Tatiana Andreeva

  • google
    5.0/5.0

    It was unbelievable!! I got into a motorcycle accident didn’t remember a thing when I woke up I was in the hospital and very terrified I thought to myself I think I need a lawyer I started looking online and I came across this law firm let me tel...

    Read more

    Vin Loco

  • google
    5.0/5.0

    Colleen Santora helped immensely in every step along the way of my fight against the insurance company regarding my property damage and injuries sustained. I'm grateful and would recommend Colleen to anyone! Thanks

    Read more

    DatDude Lex

See all reviews
Awards & Affiliations
Contact us

Quick Contact Form