Personal injury damages amounts
Liability to the injured person for an accident injury includes the obligation to pay for all the provable damages. A personal injury attorney must present all the types of damages to get a fair recovery. This series of posts will discuss some of the specific amounts that are included.
If the injured party misses work because of the accident, then the injured party is entitled to recover the full amount lost. Note that the amount of income lost in the past is different from the additional amount of income to be lost in the future because of the injury. Plourd v. Southern Pacific Trans. Co., 266 Or 666 (1973) comments on the difference.
Under Oregon Revised Statutes 31.710, both the amount lost and the amount that will be lost are labelled “economic damages”.
Oregon Revised Statutes 31.710 …“economic damages” and “noneconomic damages” defined. …
(2) As used in this section:
(a) “Economic damages” means objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.
(b) “Noneconomic damages” means subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment.
How to prove lost income
Proof of lost income in a typical injury case is straightforward, especially if the injured person is an employee and the payroll department of the employer will provide a calculation. The payroll calculation must include any sick days or vacation days used up because of the injury. If overtime was regularly earned, then the payroll history will show this and the lost income should include the expected loss of overtime wages.
When your attorney receives a letter with the payroll calculation from the employer, then the letter can be sent to the defendant. The payroll calculation letter will be sent with a formal request for admissions, to ask the defendant to admit that the injured person had an income loss in the specific dollar amount set out in the letter. If the defendant admits the specific wage loss, then it is not necessary to subpoena a payroll person to come to Court to testify about how much income was lost.
If the injured person was self-employed or on commission, the proof will be more difficult. Any presentation of self-employment losses must be straightforward because the defense is motivated to show the claim is false or exaggerated.
An unemployed person will not ordinarily get an award for lost earnings, but will be entitled to an award for the lost earning capacity during the period of recovery from the injury. This includes money for impairment of earning capacity for the time before the trial plus for the time after the trial.
Allegations in personal injury complaint
The complaint filed by the personal injury attorney should have a statement that the injured party has suffered and will continue to suffer lost earnings (if this can be proven) plus loss of earning capacity. The complaint can state the specific amount already lost, and that the income losses will continue to accrue if the injured person has not returned to a full work schedule. The full amount of past lost income is determined at the trial.