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Proving Lost Wages After An Automobile Collision

In an automobile collision claim, the law provides that you are entitled to be compensated, generally, for (1) all of the medical bills you incurred in an effort to recover from collision related injuries, (2) lost wages, and (3) what I like to call “disruption of your life,” which includes many “negatives”, such as pain, suffering, inconvenience, aggravation, and more.

The claim for lost wages, or lost income, often presents as difficult to document. This is an area where insurers love to deny or pay less than what is owed.

In order for an insurer to acknowledge, and pay, lost wages, lost income, lost commissions, lost tips, lost profits, you have to prove several things.

General concerns before we begin to document.

First, you are entitled to Gross pay, not Net pay. Insurers will argue that they will measure your pay after taxes are deducted. Your tax obligation is not their concern and they are not entitled to know what amount of tax you have to pay on your earnings to justify paying you less. If you make $15.00 per hour and lose one hour, they owe you $15.00, not $15.00 minus taxes.

Second, you are entitled to be paid for sick leave, or vacation time, or “personal” days used, even if your employer paid you for that time off. The logic is simple. But for the accident, you would not have used the time off. When you later want the time off, because you catch a cold or your aunt comes to town and you want to show her the sights, you have less time available to you. If you do take time then later to show auntie around, you lose pay.

What is needed, generally, to prove lost wages.

1. You must show that your doctor told you to stay out of work, because you need to rest and recuperate, and that work is counter-productive toward getting better. Thus, the doctor must put in writing that you are unable to work “from” a given date “to” a later date. If you are still unable to work after the later date, the doctor must write another “from-to” note in your chart. Often, employers will want, or even require, that you have a note from the doctor. This note is critical to recovering the lost income from the insurance company.

A detailed explanation on the note is very desirable. An example of such a note: “my patient cannot work because he has a physically demanding job, pushing, pulling, bending, lifting, and his neck and muscle injuries will make this work impossible until xyz date.”

Because you do not feel up to going to work does not mean the insurer will pay you. Typically they will do so for one or two days after the collision, but beyond that, you will need doctor’s orders to be able to claim reimbursement. The lesson here is that if you are not covered under a doctor’s note and you need to be off because you are physically unable to work, call the doctor and ask for the note.

2. You must have proof from your employer that you actually did not work during the period detailed in the doctor’s note. This will require a letter signed by your employer with contact information for your employer, so the insurer can verify the information. As well, the letter from the employer must state your job title or description, the amount you make per hour or week, your over-time rate of pay, the dates you missed, the normal hours and the normal over-time hours you worked each week before the collision, and the total amount of money you lost.

3. You will need proof of your income or salary. Paystubs from both before and after the period of time you were out of work are all that are needed. I recommend that my clients bring me three paystubs before that period, and three paystubs for the periods immediately after they returned to work.

Not everyone works a 40- hour week at a fixed hourly rate. Here are some additional job situations and discussion of documentation needed to prove your losses.

Commission and Sales Jobs.

Are you in the mortgage business? A realtor? Drive a cab? Sell electronic stuff? Sell encyclopedias? (okay, I’m showing my age…)

Those salespeople among you, and those of you who are paid commissions need to prove what you earned before and after the time period you were out of work. Insurers require proof that the sale would have been made. The key is to look at history. If you just started your job, you are not going to be in a great position. You then compare what other similarly situated employees did when they first started. If you have been employed for a longer time, your position improves dramatically if you can show that every year for the past three or four or five years, during the same two months you were out this year, you earned X dollars.

Tip income.

Are you a waiter or waitress, bartender, hair-stylist, concierge, doorman, massage therapist, or pizza-delivery person? Tips constitute much of your income. Did you report these tips on your income taxes? Then we have a winner! Sadly, most folks do not report tip income, or not all of it. You live by the sword, and you die by it. You will be required to produce your tax returns. Averaging prior months will yield a total, and you can then use that total to establish your losses from this accident.

Self Employed.

Small business-people, owners of the company, lawyers, doctors, accountants, restaurant owners, all have variable income that can be measured, again, by tax returns. The additional hurdle is proving that you actually lost money because you did not go to work. It may be that your employees carried on your business and nothing was lost. The guy who owns a landscaping company but does not actually cut the grass and has employees to do the work might be pressed to really establish any losses. You might also need to establish that your income was not simply deferred until you returned to work. Documentation again is king here, and in this category often needs more of it than in any of the others.

Lost Opportunity Income

How do you prove lost income if you miss a job interview or a scheduled sales presentation? There is no guarantee you would have gotten the job or the sale.

I take every lost opportunity situation for my clients as a challenge, one to call up my greatest creative energies, to prove the income lost. Were there other job candidates? Did the potential employer hire them? Let’s call the employer and ask lots of questions and see if we can get a letter saying you would have been hired, what your starting salary would have been, and even why they really miss not having you. Let’s do the same type of thing for the sale you did not make because you could not do the presentation.

Although proof may be difficult here, this can be a real loss, and you should not simply concede without a fight.

Conclusion.

Some minor collision cases do not require the services of an attorney, and if you find yourself in that category, the above will help you. Should your case be more than “minor,” now you have a starting point to assist your lawyer in making this component part of your claim. I recommend hiring an attorney if your situation involves more than a simple hospital visit or a one-time exam by your family doctor, and more than a few days off from work. Most good personal injury attorneys know how to document lost wage claims fully and properly.

Paul Samakow is an attorney in VA & MD. He represents injury victims against insurers that will not accept full responsibility for the harms and losses they cause. Email to: paul@samakowlaw.com. Paul is the featured legal analyst on the Washington Times Radio, and a columnist for the Washington Times Communities. Order his book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You”: website.