MAXIMIZE YOUR AUTO INJURY CLAIM: Part 3
Lost wages after an injury can be a significant part of the claim. But lost wages can be difficult to calculate for some jobs (e.g. jobs that pay commission or tips) and sometimes injury victims fail to properly establish the foundation for lost wage claims.
Texas law does not specifically provide for recovery of "lost wages" as damages that can be recovered in an injury claim. Technically, the proper term is "loss of earning capacity." Texas courts have long recognized that "lost earnings" is generally reliable evidence as to a person's loss of earning capacity. Therefore, to keep things simple, we'll treat the two terms as meaning the same thing although there can be a significant difference.
The "trigger" for eligibility to recover lost wages is a medical restriction from work. An injured person who does not go to work because he is in pain will have a very hard time recovering lost wages if a doctor did not formally restrict the patient from work. That will include a specific note in the medical records and usually the doctor will write out a work restriction form. The patient should be very diligent in making sure the doctor formally continues the work restriction until the patient is actually able tore turn to work. Such a formality is not necessary in catastrophic injury cases.
Sometimes employers do not require a formal work restriction. The patient should still obtain the restriction for the sake of making the insurance claim. Some injury victims work solely on a commission basis or are self-employed. The work restriction is still necessary for the lost wage claim. It is important to note that the injured person is entitled to seek lost wages for all time missed from work as a result of the injury--even if the employee was used "sick" or "vacation" days to get paid for the time off (the employee lost those days and is entitled to be reimbursed).
The injury victim should start by obtaining a work restriction from the doctor and continuing to get additional work restrictions until able to return to work. Upon returning to work when the restriction expires, a log or spreadsheet should be kept of all additional days and hours missed--for doctor appointments, physical therapy, or just because the pain was too severe to go to work some days. Properly documenting lost wage claims will help maximize the auto injury claim.
