Thursday, February 24, 2011

Can You Make A Lost Wage Claim After An Ohio Auto Accident If You're Unemployed?

The answer at first blush might be "No." After all, a logical question might be: "How can you have a claim for lost wages if you weren't employed at the time of your crash?"


What is "earning capacity?" It is income generated if a person employs his or her assets to their full capacity. Most all adults have some capacity to earn money. For example, let's assume you've been a medical technician at a local hospital for five years. You just lost your job due to cutbacks and you're in the process of applying for a new job. Duing this interim period, you're hit at an intersection by an 18 wheel rig that runs a red light. Given your injuries, you're essentially taken out of the job hunt for 6 months.

Do you have a legitimate claim with the trucking company's insurer for lost income even though you were not employed at the time of the collision? Ohio law allows injured persons to recover for their lost earning capacity. Here is the formula Ohio courts will use:

The measure of damages for impairment of earning capacity is the difference between the amount which the injured person was capable of earning before the injury and what he/she is capable of earning after the injury.


Sounds great in theory but how do you get an insurance company to recognize/honor a claim? First, your past earnings history needs to be established as a baseline. Second, your treating physician needs to state in the medical records or in a report the time frame you would have been reasonably ordered off work due to your injuries, had you been working.

And, finally, you should make a concerted, good faith effort to find employment, whether it is related to your occupation/field or not, as soon as you are physically able. You need to show that you are doing everything possible to find work.

There may be room for argument as to the amount of your claim under these circumstances, but it does not mean you're entitled to zilch, especially if your earnings history was good and the timing of the crash was bad.

If you're "going it alone" after your collision and relying upon the insurance company to "treat you fairly" in this instance, you can be sure they'll tell you: "You can't make a lost wage claim because you weren't employed at the time of the collision." Not necessarily true. But don't expect the adjuster to explain the nuances of lost earning capacity income to you. My guess is there's some section in the "insurance claims handling procedure manual" that prohibits any discussion of this.

No comments: