Claims for Lost Earning Capacity in Virginia

Being injured in an accident can be a devastating and life-changing experience.  With time, some accident victims are able to recover from their injuries and resume the life that they were living before the accident.  Others might not be so fortunate.

You might have heard that accident victims can seek compensation for medical bills, lost wages and pain and suffering.  But what if that is not enough?  What happens if you are forced to give up your job, because you are physically or mentally unable to do it anymore?   What happens if you have been forced to give up on your dreams and career goals, because you were injured by someone else?  If so, you might have a claim for lost earning capacity.

Lost earning capacity claims are designed to compensate accident victims who are physically or mentally unable to reach their full potential in their chosen careers because they were permanently injured in an accident.  There are many different types of lost earning capacity claims.  Some examples include:

  • a cabinetmaker who was unable to open his own woodworking shop after his wrist and hand were injured[1];
  • a professional singer who had to quit working after she sustained a brain injury in an automobile accident[2];
  • a 24-year old electrician’s apprentice who had to drop out of vocational school after he developed sciatic nerve irritation[3];
  • a 54-year old car salesman who had to quit his job due to a knee injury[4];
  • a 41-year old woman who could not work in a hotel laundry because she had an injured hand[5];
  • a 50-year old farmer whose injuries made it difficult for her to keep working on the family farm[6];
  • a man who had to close his automobile servicing business after he was injured;[7] and,
  • a truck driver who was still working at the time of trial but who could no longer load and unload his truck, and who would have to stop driving in the future due to increased pain.[8]

Some courts have permitted lost earning capacity claims for children who were injured in an accident or as a result of medical malpractice[9], and also for parents whose careers suffered because they had to care for their injured child.[10]

To determine whether an injured person is entitled to compensation for lost earning capacity, courts will evaluate whether the individual was injured during an accident, whether the injury is permanent, and whether the injury is (or will) prevent the injured person from pursuing, succeeding or advancing in their chosen career.  Other factors that courts might take into consideration include the injured person’s life expectancy, remaining work life expectancy, work history before the accident, and the wages that the person expected to earn during the course of their career.[11]

Lost earning capacity claims are not limited to individuals who lose or have to quit their jobs after they are injured.  An individual that is able to continue working, but is not as efficient, alert or productive as they were before the accident, might be entitled to compensation.[12]

Lost earning capacity claims are not limited to individuals who were employed at the time of the accident.  Individuals who do not have a job when they are injured[13], or who lose their jobs for unrelated reasons[14], also might be entitled to compensation.  In fact, an individual can assert a claim for lost earning capacity, even if they are earning more after the accident than they did before they were injured.[15]

Allen & Allen is committed to representing individuals who are injured as a result of someone else’s negligence.  If you are wondering whether you or someone you know might have a claim for lost earning capacity, please contact us today for a free consultation.

About the Author: Ashley Davis is the Research and Writing Attorney for the personal injury law firm of Allen & Allen. Ashley works out of their Richmond office where she helps to identify, analyze and address legal issues that affect our clients’ cases.

[1]Exxon Corp. v. Fulgham, 224 Va. 235, 294 S.E.2d 894 (1982).

[2] Honsinger v. Egan, 266 Va. 269, 272-273 (2003).

[3] Bailey v. Henderson, 240 Va. 1, 392 S.E.2d 681 (1990).

[4] Davenport v. Aldrich, 207 Va. 271 (1966).

[5] Clark v. Chapman, 238 Va. 655 (1989).

[6] Phares v. Fahrney, 47 Va. Cir. 211 (Rockingham 1998).

[7] Julias v. Moyers, 44 Va. Cir. 256 (Rockingham 1998).

[8] Wood v. Tinsley & W. Express Co., 1987 Va. Cir. LEXIS 75 (Spotsylvania 1987).

[9] Moses v. Akers, 203 Va. 130 (1961); Boyer v. Dabinett, 74 Va. Cir. 19 (Winchester 2007).

[10] Irby v. Richmond Pediatric Assocs., 16 Va. Cir. 383 (Richmond 1989).

[11] Hodges v. Norfolk S. Ry. Co., 56 Va. Cir. 348 (Roanoke 2001).

[12] State Farm Mut. Auto. Ins. Co. v. Futrell, 209 Va. 266 (1968).

[13] Clark v. Chapman, 238 Va. 655 (1989).

[14] Hodges v. Norfolk S. Ry. Co., 56 Va. Cir. 348 (Roanoke 2001).

[15] Exxon Corp. v. Fulgham, 224 Va. 235 (1982); Julias v. Moyers, 44 Va. Cir. 256 (Rockingham 1998).