What happens if I cannot work because of my injury?
By Adam J. Langino, Esq.
If you or someone you love is injured or killed by the wrongful act of someone else, then there are many different types of damages you can seek to make you whole for the losses you have suffered. This article discusses what happens if a person cannot return to work due to an injury (or death). In the law, these are often referred to as vocational damages.
What are vocational damages?
While each state is different, very broadly, vocational damages are for the loss of earnings and future loss of earning capacity that a person suffered due to an injury.
Loss of earnings is backward looking. For example, if a person lost 100 hours of work due to hospitalization, surgery, or recovery, that person can seek the money they would have made had they not been injured. If that person were paid $25 an hour, their loss of earnings would be $2,500.00 ($25/hr x 100).
Future loss of earning capacity is forward-looking. In that same example, let’s say the injured person recovered but no longer has the physical ability due to a job that pays $25 an hour. Now, that person is only capable of working a job that pays $15 an hour. Let’s assume that person has another ten years until they reach retirement age. If that person were working 2,000 hours a year, they would have made $50,000.00 ($25/hr x 2,000) a year for the next ten years, or $500,000.00, if they weren’t injured. Now, if the person can still work 2,000 hours a year, their annual pay would only be $30,000.00 ($15/hr x 2,000) a year for the next ten years, or $300,000.00. Due to their injury, the person’s loss of future earning capacity has been diminished by $200,000.00.
Therefore, for this person, their total vocational damages would be their loss of earnings ($2,500.00) plus their future loss of earning capacity ($200,000.00), or $202,500.00.
Why do you have vocational damages?
Disability is more common than you think. According to the federal government, in the U.S., 61 million adults live with a disability.[i] 13.7 percent of U.S. adults have a mobility disability with serious difficulty walking or climbing stairs.[ii] 10.8 percent of U.S. adults have a cognition disability with serious difficulty concentrating, remembering, or making decisions.[iii] In the U.S., 2 in 5 adults aged 65 years and older have a disability.[iv] Further, 1 in 3 adults with disabilities 18 to 44 years have an unmet health care need because of cost in the past year.[v]
According to the U.S. Department of Labor, in 2021, 19.1 percent of persons with a disability were employed.[vi] For persons without a disability, 63.7 percent were employed in 2021, up from 61.8 percent in the prior year.[vii] “Across all age groups, persons with disabilities were much less likely to be employed than those without disabilities.”[viii]
Not only does disability create high costs for the person injured, but it also correlates with high societal costs.[ix] “Various disparate federal and state programs attempt to address the economic and social needs of people with disabilities.”[x] Due to these high costs, if someone else injures you, you can seek to recover damages if your injury prevents you from working or decreases your earning capacity over your life.
By seeking vocational damages in a lawsuit, you hold the defendant accountable for causing your injury to pay the burden it created. It shifts the responsibility away from you and your community (e.g., taxes) to the defendant. Typically, in lawsuits, the defendant you are suing is covered by insurance. You are asking the defendant’s insurance company to pay you for your damages. The insurance companies would rather you, your neighbors, or your community pay for your injuries, which is why lawsuits are often necessary.
What does the law say about vocational damages?
In Florida, a plaintiff (the person suing) must present evidence regarding a reasonable certainty as to their amount of damages.[xi] Once sufficient evidence is given, the measure of damages is the loss of capacity to earn by any impairment found by the jury, and the jury must base its decision on all relevant factors, including the plaintiff’s age, health, habits, occupation, surroundings, and earnings before and after the injury.[xii] Florida Jury Instruction 501.2 explains to the jury that a plaintiff can recover “[any] earnings, any working time, lost in the past and any loss of ability to earn money in the future.”[xiii]
In North Carolina, like Florida, a plaintiff must prove their claim for vocational damages. Compensation for lost earning capacity is recoverable when such loss is the immediate and necessary consequence of an injury.[xiv] In determining the amount of compensation for lost earnings or earning capacity, the jury considers the age and occupation of the plaintiff, the nature and extent of the plaintiff's employment, as well as the value of the plaintiff's services, and the amount of income at the time, whether fixed wages or salary.[xv]
North Carolina Jury Instruction 810.06 explicitly addresses this type of damage.[xvi] It says that “[damages] for personal injury also include fair compensation for the past, present, and future loss of time from employment, loss from inability to perform ordinary labor, or the reduced capacity to earn money experienced by the plaintiff as a proximate result of the wrongful conduct of the defendant.”[xvii] In North Carolina, a jury considers the plaintiff’s age and occupation, nature and extent of employment, the value of services, income, the effect of disability on earning capacity, lost profits, and loss of ability to make money.[xviii] The fact that a person was not working at the time of their injury does not prevent a person from recovering fair compensation for loss of future earning capacity.[xix]
How can I help my lawyer prove my vocational damages?
There are several ways you can help your lawyer prove your vocational damages. First, make sure you get copies of your tax returns. If you don’t have them handy, be proactive in requesting them from the IRS. You can ask them online here. Second, speak to your H.R. manager and get a copy of your pay stubs starting the year before your injury. Third, reach out to co-workers who can discuss how your injuries have affected your work. For example, were you a part of a team that disbanded after your injury because you were the glue holding it together? Your lawyer will only know this if you tell them. Finally, it would be best if you did everything possible to improve. A jury will not provide you with vocational damages if they do not believe you tried your hardest to return to the workforce. Make sure you document for your lawyer all your efforts at getting better.
I am sorry if you are reading this because you or someone your love was killed or catastrophically injured by the negligent acts of another. Over my career, I have handled many wrongful death and catastrophic injury claims. I am licensed to practice law in Florida and North Carolina and co-counsel claims in other states. If you would like to learn more about me or my practice, click here. If you want to request a free consultation, click here. As always, stay safe and stay well.
[i] “Disability Impacts All of Us Infographic.” Centers for Disease Control and Prevention, Centers for Disease Control and Prevention, 28 Oct. 2022, https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html.
[vi] “Persons with a Disability: Labor Force Characteristics Summary - 2021 A01 Results.” U.S. Bureau of Labor Statistics, U.S. Bureau of Labor Statistics, 24 Feb. 2022, https://www.bls.gov/news.release/disabl.nr0.htm.
[ix] Reville, Robert T., and Robert F. Schoeni. “The Fraction of Disability Caused at Work.” Older and Out of Work: Jobs and Social Insurance for a Changing Economy, 2008, pp. 85–100., https://doi.org/10.17848/9781435667419.ch5.
[xi] Regions Bank v. Maroone Chevrolet, LLC, 118 So.3d 251, 257 (Fla. 3d DCA 2013).
[xii] W.R. Gace & C.-Conn v. Pyke, 661 So. 2d 1301 (Fla. 3d DCA 1995).
[xiii] 501.2 PERSONAL INJURY AND PROPERTY DAMAGES: ELEMENTS
[xiv]Curry v. Baker, 130 N.C. App. 182, 502 S.E.2d 667 (1998).
[xvi] 810.06 PERSONAL INJURY DAMAGES - LOSS OF EARNINGS.
[xix] Johnson v. Lewis, 251 N.C. 797, 112 S.E.2d 512 (1960)