By Paul R. Kirst, Esq.
At Craig P. Kenny & Associates we strive to recover every bit of compensation you are entitled to as a result of injuries suffered in an auto accident, dog attack, slip and fall, or other unfortunate events. Some items of compensation such as medical bills and pain and suffering are more obvious than others. This article contemplates the likelihood of prevailing on a claim seeking lost wages or lost income.
Not all such claims are equally provable. For instance, if you are an hourly employee, it might be a straightforward process to prove your lost wages. The first – and often sufficient – way of proving lost wages for an hourly employee is to have your employer complete a wage loss verification form. This form asks for wage loss verification information which boils down to the following parts: 1. Number of Hours Missed, 2. Hourly Wage, and 3. Gross Wages Lost (calculated by multiplying the first two numbers). While there is other information requested in the form such as tip, commission, and overtime data, the main component applicable to most claimants is those first three numbers.
You should be careful, however, in ensuring your employer accurately completes the form. Some supervisors might be subject to time constraints and not be overly eager to accurately complete the form. However, this can pose problems later. There have been instances where an employer estimates the lost time and the estimate proves to be inaccurate during litigation. In other words, if you are making a wage loss claim in litigation, you give the defense the opportunity to request your employment file – including pay history – and it can create issues if your employment file ends up reflecting less time missed than is reflected in the wage loss verification form. Be assured the defense will explore this issue if the wage loss claim is more than a couple hundred dollars.
Another method of proving lost wages for the hourly worker is providing pay stubs. We often request several months of pre-accident pay stubs to show that you are in fact a full-time, 40-hour-per-week employee or, if not, how many hours per week you averaged prior to the accident. We then also gather the pay stubs from after the accident until you resume work to the same degree you enjoyed before the accident. By comparing these numbers (multiplied by your hourly rate), we have a pretty good method of proving how many hours (and dollars) you missed.
The wage loss calculation process is more difficult for the self-employed – especially if you have a lot of cash income. In that situation, we can’t just have an employer complete the wage loss verification form and we can’t gather pay stubs from pre and post-accident to compare the numbers and prove the wage loss. More often than not, these things are just not available to the self-employed. But does that mean you are out of luck? Not necessarily, but we have to get a little creative to prove lost income in that situation.
One common occupation subject to this problem is the Uber and Lyft driver. Again, getting creative can help. Much like gathering months of pay stubs, we can ask the client to gather months of pay history from these ride-share companies. There is likely some variation, but with enough months of history, we can work out what the typical income was per week pre-accident. We then run those same numbers post-accident and compare them. If there is a drop, the amount of the drop provides some proof of the lost income. However, those same records can also reflect that shortly after the accident the client was earning pre-accident income – which likely ends the likelihood of obtaining further lost income compensation.
Bank deposit history also can help to prove a lost wage claim for the non-hourly worker. If bank records show some degree of regular deposits that suddenly drop following an accident, that may be sufficient to prove, or at least add insight to the lost income/wage claim.
Of course, this article does not even contemplate whether a doctor has ordered the employee to not work. Even if we can show a drop in income, there has to be an accident-related basis for that drop before one can realistically expect to recover any lost wages or income.
