“But my doctor wrote me a disability note!”
We hear this all the time from clients. As a matter of fact we obtain disability notes from our clients’ doctors. Unfortunately this is not the only requirement to getting your wages paid in a personal injury case.
Even if you have pain, and a medical diagnosis that relates the pain to your accident, there are strict rules to how disability is paid.
Do Insurance Companies Pay for Lost Wages?
The other guys’ insurance company is not responsible for paying for your lost wages, at least not until the end of the case, as a result of the settlement or verdict. Wage loss is one of the items of damages your can sue for, along with pain and suffering, physical injuries, medical bills that you paid out of pocket, and similar losses. To prove your wage loss is related to the accident, as with all medical proofs, your doctor must use the magic language “ within a reasonable degree of medical certainty “ stating the wage loss that you claim happened as result of your injuries is in fact related, in his or her opinion. Your doctor must be prepared and willing to testify to this at the trial of your case. So, just because your doctor gave you a disability note it is not necessarily enough to prove this aspect of your case to the opposing insurance company, or to a jury.
How Do Insurance Companies Calculate Lost Wages?
Moreover, sometimes if your doctor is not particularly cooperative in writing the reports we need to prove your injuries and wage loss are related to an accident, we may need to hire an outside medical expert to examine you and to review your doctors’ records to in order to opine that the injuries and wage loss are related. This can take time, and is another reason wage loss is not paid at an early stage of the case.
We also need actual proof of time out of work from your employer. This can come in a variety of forms, for instance by your employer completing a wage and salary verification form or supplying proof of wage loss through payroll records. Your tax returns from the years preceding your injury can also be helpful.
If you have your own disability coverage, either through your auto insurance, privately, or through your employer, you may be able to submit your wage loss claim to your insurance company. We can help you with that. However, the same proofs are needed to show you are entitled to be compensated. That is, proof of actual wage loss from your employer and medical proof of actual disability.
Can you Sue Someone For Lost Wages if you Switch Jobs?
How about if you had to switch jobs because of your injury? Do you have a wage loss claim? Generally the answer is no. This is particularly so if you are getting paid at your new job at or more your rate of pay that you had to leave. So, “I can’t do my job duties “ doesn’t necessarily equate to getting paid for wage loss.
There are several other factors you have to consider when making a wage loss claim. First, you have a duty to mitigate your damages, even if you’ve been injured. So, if you can replace your wages in some way (by taking another job or by asking for accommodations from your employer, by way of example ), it is your obligation to do so.
How Do Insurance Companies Test Your Proof of Wage Loss Claim?
Second, the other side gets a vote. So, if the other side is your own insurance company to whom you are making a wage loss claim, or the defendant’s insurance company, they will test your proofs of wage loss. They will look into the documentation of your time out of work, and will scrutinize your tax returns.
They also have a right to have you medically evaluated. Insurance companies, including your own, have a structural conflict of interest. What that means is that the medical doctors who they ask to review your records and/ or examine you are biased and paid for by the insurance company. The opinions they render in the form of a report and testimony for the insurance company are generally not favorable to you. These opinions compete with your own medical experts’ opinions. Even if you have objective evidence of injury and sufficient proof of wage loss from your employer and your own doctor, the insurance company doctor does not have to agree. Insurance companies are in the business of making money. They have to answer to their shareholders. Even your own insurance company owes no particular duty or obligation to you to pay wage loss except to “fairly” evaluate your wage loss claim.
If you have questions about your wage loss claim, give Carpey Law a call.
Stuart A. Carpey, who has been practicing as an attorney since 1987, focuses his practice on complex civil litigation which includes representing injured individuals in a vast array of personal injury cases.