You Don't Pay
Unless You Win
Injured man with lawyer

Calculating “Lost Earning Capacity”

the Law Firm of Walter Gabriel, LLC Oct. 3, 2023

If you’ve been injured because of some person or entity’s actions or inactions, it’s natural to feel overwhelmed. Thankfully, you may be able to bring forward a claim to pursue damages. Damages refer to medical expenses, lost wages, pain and suffering, loss of consortium, and other losses and expenses that would not have occurred had you not been injured.  

If a claim cannot be settled at a level sufficient to recover for damages, and/or a settlement cannot be reached, then you can file a personal injury lawsuit, generally under the legal concept of negligence. Negligence means that the at-fault party either took actions that resulted in your injuries, or failed to take actions that would have prevented your injuries. 

Suppose that as a result of these injuries, you miss time from work while getting treatment or recovering. Your damages could then include a claim for lost wages. But what if your injuries were such that your ability to work in the same or similar capacity in the future were jeopardized? Could you make a claim for lost earning capacity? 

While it’s fairly easy to document days and subsequent income lost from your job, proving loss of earning capacity could be more complex. If you or a loved one has been injured because of another party’s negligence in Georgia, it’s important to contact an attorney to help you through this process. 
Reach out to The Law Firm of Walter Gabriel, LLC. Attorney Walter Gabriel represents clients in their personal injury claims, including loss of earning capacity. He will examine your case and advise you of your legal options—and then help you find a path forward. 

In addition to Atlanta, Attorney Walter Gabriel also proudly serves clients throughout the surrounding areas, including Dunwoody, Alexandria, and the rest of the state. 

Loss of Income vs. Loss of Earning Capacity

When you’re injured, you may need to take days off for medical treatment or therapy. You also may be injured enough that you have to stay at home to recover. Worse, you may even have to spend time in a hospital or emergency room and face surgery or other vital care. Your pain and emotional trauma while recovering may also keep you from working. 

All the workdays that you miss because of these factors should be compensated by the at-fault party. Even if you take paid personal time off, sick days, or vacation time to keep being paid while attending to your injuries, those days can still be considered lost wages since you weren’t able to use them in the way intended—for instance, in actually taking a vacation. 

Loss of earning capacity is more future-oriented. In this case, your injuries have resulted in physical or mental conditions or impairments that limit your future wage potential. This can be hard to calculate since it will be largely based on a person’s job or career path and innate skills. 

If, for instance, a construction worker ends up being injured to the extent that they cannot continue in that job path—where they earned a good wage because of a high base wage along with overtime—it can be argued that their wage-earning potential has been reduced. 

Keep in mind that it doesn’t have to be a physical impairment that can result in loss of earning capacity. It could also be an emotional condition. Perhaps the injured person, because of the trauma of what happened, is now unable to even leave the house and venture out anymore. This could certainly be considered a loss of earning capacity.  

How Is Lost Earning Capacity Calculated & Proven?

The examples above are certainly not exhaustive. To prevail in a claim or lawsuit involving loss of earning capacity, it typically requires expert testimony of someone from the appropriate medical profession, perhaps a spinal surgeon or specialist in the first example, or a neuropsychologist in the second. 

On top of that, there will need to be an estimation, or calculation, of a dollar amount resulting from the loss of earning capacity. This, too, can be a bit challenging. Factors that will need to be considered include the person’s skills, their job or professional, their education, their work experience, and their ability to transfer their knowledge and skills to another work situation.  

Age can also be a factor, but awards generally never go beyond the presumed age of retirement. 

It's important to note here that if the injury occurred at work, and a claim is being made through workers’ compensation, state laws govern how benefits are calculated. Any lost wages or loss of earning capacity will be determined using a formula based on the person’s average weekly wage at the time of the injury, and then their level of impairment will be factored in. Most importantly, you cannot sue your employer under workers’ compensation. 

Statute of Limitations for Filing a Personal Injury Lawsuit

Section 9-3-33 of the Georgia Code states: “Actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues, and except for actions for injuries to the person involving loss of consortium, which shall be brought within four years after the right of action accrues.” 

The word ‘accrues’ generally refers to the date of the injury—or in the case of medical malpractice, to the date when the result of the malpractice became evident. 

Working with an Attorney

Proving loss of earning capacity can be very challenging. The defendant, or at-fault party, may argue that a pre-existing condition or some actions you took either contributed to your condition or caused it altogether. The defendant’s team can also argue that you are perfectly able to perform at other jobs or professions to earn the same as you did before your injury, or even more. 

Reach out to a skilled personal injury attorney to counter all these claims and arguments. Your attorney can assemble the documentary evidence, including medical records, and obtain the expert testimony necessary to bolster your case. 

Personalized & Professional Legal Counsel

If you’re injured and your future prospects have dimmed when it comes to your future earning power, you need to take action for your sake, as well as for the sake of your loved ones. Contact the personal injury attorney at The Law Firm of Walter Gabriel, LLC. As a detail-oriented lawyer, Attorney Walter Gabriel can put together a strategy that works for your unique case.