- Injuries & Accidents
- Damages
- Insurance Companies
- Statutes of Limitations
- Settlement vs. Lawsuit
- Your Doctor
- Loss of Income
What You Need to Prove to Win Your Case
One constant over the many years and thousands of injuries, accidents and cases I have handled is that no two personal injury claims are alike. Anyone can be injured in an infinite number of ways, and in an infinite number of circumstances. Regardless of the unique nature of every injury claim, all cases require the same issues to be proven: First, that someone was at fault, and Second, every element of your damages must be identified, documented and proven in order to win your case. These are called "Liability" and "Damages."
Was there a negligent act by another person? Negligence is the failure to act with due care. The negligent act can be careless driving causing a collision; allowing a foreign material to remain on a floor that causes someone to fall; a doctor failing to follow a standard of care causing a patient injury or death; or any other conduct or act done unreasonably or unsafely where it is foreseeable that it is likely to cause injury to another person.
Is the conduct one of strict liability, where the conduct creates fault by operation of law. A dog bite claim is one of strict liability, where the dog owner is liable for his dog biting someone else, regardless of whether the owner of the dog was negligent or not. A defective product claim is also one of strict liability. The manufacturer or designer of the defective produce does not have to be negligent to be at fault. The proven fact of the defect itself is proof of fault.
The conduct in question must cause harm, injury or damage. In the case of a motor vehicle collision, it could be property damage to the car or a personal injury to the driver or passenger. In the case of a slip and fall, the personal injury from falling is the harm. In the case of a defective product, again, a bodily injury to the user of the product or a bystander to the use of the product is the harm. In a medical negligence claim, the result of the negligence must be an injury to the patient that would not have occurred if the medical provider had not committed the negligent act. The common link is that the conduct must be a substantial factor in causing injury, harm or loss to another person.
The blame for causing the injury or harm can be due to one other party or can be divided among several negligent parties. The harm can arise from a single negligent act or multiple negligent acts. The duty of the lawyer is to determine all of the potential defendants or parties responsible for the harm, all acts committed that caused or contributed to the harm, and determining the nature and extent of all injuries, damages or harms that were caused.
The injury or harm must be distinguished from any other source or cause of injury. If you have a pre-existing condition or injury that is aggravated or made worse by a negligent act of another party, the negligent party is not responsible for the pre-existing injury or condition. The negligent person is responsible for the aggravation of the pre-existing condition and any new injury or condition superimposed upon the old condition. This is very complex and will depend upon the expertise of your doctor or other medical witnesses.
The injury or harm from a negligent act must also be distinguished from any subsequent or later acquired injury. This can happen if you are injured in an accident, and then get into another accident later on that also injures you. The facts as well as medical witnesses must be able to distinguish injuries and harms from the negligent act versus injuries and harms from unrelated events.
The difference between truth and proof: EVERYTHING MUST BE DOCUMENTED.
What actually happens to the victim in an injury producing event, the pain they feel, the effect the injury has on their life and livelihood, and what they do about it is the truth. Unfortunately, no insurance company claims representative and no jury will ever really know what you, the victim, have gone through and how you have suffered. Not really. What is important in any personal injury claim, more important than the truth, is the proof. To the extent that, through witnesses, documents, photographs, evidence and expert testimony you or your attorney can prove what happened to you, the nature and extent of every injury, harm and loss you suffered, and the closer that proof matches the truth, the better will be your result, whether through settlement or trial. You must always keep in mind that everything you claim must be proven. Without proof no insurance company will be willing to pay you money for your injuries. Without proof, no jury will render a verdict in your favor. And your proof must be for both how and why the defendant was at fault and how the defendant’s conduct caused your injuries, harms and losses. In that regard, documentation, documentation, documentation is everything.
Feel free to contact us, or submit your personal injury case for a free review. We value your privacy. Your submission is confidential. We do not share your information with anyone. 818 716-6400.
We represent personal injury clients throughout California. Our local communities are the counties of Los Angeles, Ventura and Orange. Local cities include Woodland Hills, Encino, Van Nuys, Chatsworth, Calabasas, Hidden Hills, North Hollywood, Studio City, Sherman Oaks, Burbank, Santa Monica, Beverly Hills, Pasadena, Sylmar, Valencia, Moorpark, Simi Valley, Oxnard, Newbury Park, Lancaster, Long Beach, West Covina, Duarte, Pomona, El Monte, Downey, Palos Verdes, Canyon Country, Valencia.
Information provided on this website is general in nature. No legal opinion is expressed or implied on any specific case or claim. No representation of any person is provided, and cannot be provided without a signed retainer agreement. For legal advice on any specific legal matter, the Law Offices of John P. Rosenberg, A Professional Law Corporation must be retained, in writing. No legal advice is provided for any matter outside for the state of California. Any results portrayed were dependent on the facts of a particular legal matter and results vary from case to case.
Please contact Law Offices of John P. Rosenberg for a consultation in your particular case.
Copyright: Law Offices of John P. Rosenberg, A Professional Law Corporation. 2010.
All Rights Reserved.
Damages
Types of Personal Injury Damages
Those who prevail in a civil action for personal injuries are typically entitled to recover damages. The precise amount of a personal injury damage award is determined by a jury on a case-by-case basis. If the award is excessive or deficient, a court may review the award and increase or decrease the final amount without a new trial or appeal. A personal injury damage award may include two types of damages: compensatory damages and punitive damages.
Compensatory Damages
Compensatory damages are designed to place a victim in the position he or she would be in if the injury had never occurred. By placing a dollar amount on the victim's injuries, compensatory damages seek to restore the victim financially, physically and emotionally. Compensatory damages may be divided into two categories: damages that compensate victims for monetary losses (also known as special damages), and damages that compensate victims for non-monetary losses (also known as general damages).
Monetary Losses
Compensatory damages for monetary losses include:
Medical expenses. Damages for medical expenses may include the costs of both past and future medical care and rehabilitation. Future costs are calculated by estimating the patient's medical needs for the rest of his or her life expectancy.
Costs of living with a disability. An injury may result in a disability that requires a victim to significantly alter his or her lifestyle. Compensatory damages may cover the costs associated with this change. For example, a damage award may compensate a victim for the costs of renovating a house to make it wheelchair-accessible, or the costs of in-home nursing care or assistance.
Lost wages. A victim may recover any wages lost while recovering from an injury, as well as any lost earning capacity suffered as a result of an injury.
Repair or replacement of property. A victim may recover the costs of property damage suffered in a car accident, or other type of accident. Property is typically valued at its fair market value at the time of the injury.
Funeral expenses. The family of a personal injury victim may recover the costs of any funeral expenses incurred as a result of the injury.
Non-Monetary Losses
Non-monetary damages may be difficult to calculate and damage awards may vary significantly between victims. Damages for non-monetary losses include:
Pain and suffering. Damages for pain and suffering typically include compensation for actual physical pain, as well as compensation for emotional distress. Emotional distress is defined as the frustration, fear, anger and loss of enjoyment of life associated with suffering from a debilitating injury.
Loss of consortium. Spouses of personal injury victims may receive damages for the loss of the emotional and intangible elements of marriage, such as loss of affection, solace, comfort, companionship, society, assistance, and sexual relations.
Punitive Damages
Punitive damages are not designed to compensate the victim, but to punish the defendant for inflicting the victim's injuries and to deter others from engaging in similar behavior. Punitive damages are typically awarded when the defendant's conduct has been especially egregious or outrageous. Punitive damages are not awarded in every personal injury case, and may not be considered unless a compensatory damage award has been ordered. In order to avoid excessive punitive damage awards, courts typically limit punitive damages to less than ten times the amount of compensatory damages.
Structured Settlements
Recipients of large personal injury damage awards may opt to receive the award in the form of a structured settlement. Structured settlements serve as an alternative to lump-sum damage awards. Structured settlements disburse the damage award to the victim on a monthly or annual basis over a certain period of time. There are many benefits to choosing a structured settlement, including reduced federal and state income taxes, and an increased likelihood of recovery from the defendant. Because each victim's financial needs are different, those considering a structured settlement should first consult an attorney as well as a financial planning professional.
The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law. See Terms of Use.
Feel free to contact us, or submit your personal injury case for a free review. We value your privacy. Your submission is confidential. We do not share your information with anyone. 818 716-6400.
We represent personal injury clients throughout California. Our local communities are the counties of Los Angeles, Ventura and Orange. Local cities include Woodland Hills, Encino, Van Nuys, Chatsworth, Calabasas, Hidden Hills, North Hollywood, Studio City, Sherman Oaks, Burbank, Santa Monica, Beverly Hills, Pasadena, Sylmar, Valencia, Moorpark, Simi Valley, Oxnard, Newbury Park, Lancaster, Long Beach, West Covina, Duarte, Pomona, El Monte, Downey, Palos Verdes, Canyon Country, Valencia.
Information provided on this website is general in nature. No legal opinion is expressed or implied on any specific case or claim. No representation of any person is provided, and cannot be provided without a signed retainer agreement. For legal advice on any specific legal matter, the Law Offices of John P. Rosenberg, A Professional Law Corporation must be retained, in writing. No legal advice is provided for any matter outside for the state of California. Any results portrayed were dependent on the facts of a particular legal matter and results vary from case to case.
Please contact Law Offices of John P. Rosenberg for a consultation in your particular case.
Copyright: Law Offices of John P. Rosenberg, A Professional Law Corporation. 2010.
All Rights Reserved.
The Insurance Company Is Not Your Friend
I am a believer in insurance. I recommend to all of my clients that they carry a lot of insurance. Insurance is important, because it allows us to spread and share the risk of loss so that in the event of a loss the insurance “pool of funds” will be available to pay for that loss and protect any insured individual from the cost of suffering the entire harm. That is how insurance should work at it’s best. Everyone participating pays into the fund and those unfortunate enough to suffer an unexpected loss are paid from the fund. But....
Insurance is a business. It is a very big business. All insurance carriers collect funds from premium payments. Until those funds are paid out in claims, or spent on overhead expenses, the insurance company gets to keep and invest those funds. The profits from their investments are in important part of the insurance companies’ income. To the extent that the amount of money they pay on claims plus their overhead expenses are less than the income from premium payments in investments, they create a profit for the insurance company shareholders. This is how all businesses work. All businesses exist to generate profit for their owners. That is their purpose.
With insurance companies, the less they pay in claims, the greater their profits. Thus, insurance carriers have an inherent conflict between their owners and shareholders who want to make and keep profits and their customers or claimants who expect to be treated fairly and paid up fully and promptly on claims. The less an insurance company pays on claims, the more money [PROFIT] they get to keep.
In the field of personal injury, we deal with casualty claims. Insurance carriers have, by and large, recognized that they can turn their claims departments into profit centers by refining their methods of limiting and denying claims. THEY HAVE BECOME VERY CREATIVE, AND VERY GOOD AT IT. In most cases, the insurance companies have established arbitrary standards that they never divulge to the public regarding what they will and will not pay for. If you are injured in an accident caused by their insured, they will review your medical bills and treatment records. If your doctor felt you needed a certain type of care, test or treatment, and the insurance company’s secret “standards” do not include what your doctor has done, or the amount that he has charged you, the insurance company will arbitrarily deny that portion of your claim. Some insurance companies use a computer program, called Colossus, which tells them what they should offer on your case, taking the human element out of the equation. And, if you don’t like it or agree with their assessment, what can you do about it?
In California, the law imposes on insurance companies a duty of good faith and fair dealing. The law imposes a duty that the insurance company must promptly and fairly evaluate and pay claims. Unfortunately, what is prompt and what is fair is left up to the insurance company. The insurance Commissioner for the state of California has neither the manpower, the money nor the will to become involved in each claim or instance where the insurance company has either unfairly denied a claim or unfairly evaluated the claim.
That leaves it up to you, the claimant, to deal with the insurance company claims representative who is trained to avoid paying any more on your claim then absolutely necessary. The insurance company knows that if you do not have a personal injury lawyer and are representing yourself, if you don’t like how they have handled your claim there is very little that you can do about it. That’s where your personal injury lawyer comes in.
An insurance company will pay a claim if it recognizes that the claim poses a risk that a jury may give more than the insurance company wants to pay. If an insurance company does not see a risk, they will not pay. If they do not believe that you can win, they will not pay. If they do not believe that you are wiling to take action to force them to pay more, they won’t pay more. Its as simple as that.... for them. For you, however, its not so simple. Facing down an insurance company on a matter important to you, perhaps because the accident has left you with large medical bills, loss of income, disfigurement, impairment in your ability to live and enjoy your life, is a daunting task for you.....and THEY know it. They know very well the position they place you in. But, for the insurance company, its all about the money, and keeping their profits, not what’s best for you.
Feel free to contact us, or submit your personal injury case for a free review. We value your privacy. Your submission is confidential. We do not share your information with anyone. 818 716-6400.
Statutes of Limitations
What does the term "Statute of Limitations" mean?
A statute of limitations is a law which places a time limit on pursuing a legal remedy in relation to wrongful conduct that causes an injry. After the expiration of the statutory period, unless a legal exception applies, the injured person loses the right to file a lawsuit seeking money damages or other relief.
Although people often speak of "the statute of limitations", in fact there are many statutes which apply limitations periods to civil actions. Sometimes it can be difficult to keep track of the various statutes and their exceptions. Thus it is a very good idea for somebody who is concerned about losing their right to sue as a result of the expiration of the statutory limitations period to consult with a qualified lawyer, who can help determine which statute applies, and help preserve the right to recover damages.
What About Specific Civil Cases
The following periods represent a small sample of the statutory limitations periods in California. Please note that it may be possible to bring multiple causes of action from a single incident of wrongful conduct, and thus even if it appears that the relevant statute of limitations has run it may remain possible to bring a different claim. Also, there may be an exception to the standard limitations period that applies to any given situation. The following list is provided by way of example. If you wish to know how the statute of limitations applies to a specific situation, you should verify the statutory time period and its relevance to your situation with a qualified California lawyer.
Professional Malpractice:
Legal malpractice, 1 year from date of discovery, to a maximum of four years from the date of the wrongful act.
Medical malpractice, 3 years from the date of the injury, or one year from the date the plaintiff discovers or reasonably should have discovered the injury, whichever occurs first. If the medical malpractice action is based upon the presence of a foreign object found inside the plaintiff's body, the statute of limitations does not start to run until the plaintiff discovers, or should have discovered, the object. The periods of limitation for medical malpractice apply to minors six years of age and older.
Personal Injury: 2 years.
Fraud: 3 years.
Libel / Slander / Defamation: 1 year.
Injury to Personal Property: 3 years.
Product Liability: 2 years.
Contracts: Written, 4 years; Oral, 2 years..
When Does a Status of Limitations Start?
A statute of limitations is said to start running at the time a claim accrues. Ordinarily, that is the time at which an injury is suffered.
What if I Don’t Know The Cause of My Injury or When I Was Injured?
Sometimes it is not reasonably possible for a person to discover the cause of an injury, or even to know that an injury has occurred, until considerably after the act which causes the injury. For example, an error in the drafting of a will might not be noticed until the will is being executed, decades after it was drafted, or a financial planner's embezzlement might not be noticed for years due to the issuance of false statements of account.
When it applies, the "discovery rule" permits a suit to be filed within a certain period of time after the injury is discovered, or reasonably should have been discovered. The discovery rule does not apply to all civil injuries, and sometimes the period of time for bringing a claim post-discovery can be short, so it is important to seek legal assistance quickly in the event of the late discovery of an injury.
Can the Statute of Limitations be Extended?
In addition to late discovery, it may be possible to avoid the harsh result of a statute of limitation by arguing that the statute has been "tolled". When it is said that a statute is "tolled", it means that something has stopped the statute from running for a period of time. Typical reasons for tolling a statute of limitations include minority (the victim of the injury was a minor at the time the injury occurred), mental incompetence (the victim of the injury was not mentally competent at the time the injury occurred), and the defendant's bankruptcy (the "automatic stay" in bankruptcy ordinarily tolls the statute of limitations until such time as the bankruptcy is resolved or the stay is lifted).
Under California law, except in cases of medical malpractice, a minor has two years from the date of his or her 18th birthday to file a tort claim. For medical malpractice actions involving minors below the age of six, the action must be filed within three years of the date of the injury or before the minor's eighth birthday, whichever period is greater.
A Defendant’s absence from the state may allow an extension of the Statute of Limitations.
In a Medical Malpractice case, the Statute of Limitations may be extended by up to 90 days by providing a notice to the Defendant of your intention to file a lawsuit.
Government Claims
In the event that a Defendant is a Governmental Entity, such as a state, city, county, or other governmental district, you must serve the entity a government claim form within 6 months of the injury. A Government Entity is not always easily recognizable or identifiable, but failure to know that the Defendant in a case was a Government Entity is not an excuse.
Important Notice: The above listed notes on California's "statute of limitations" laws is merely a summary. This information is believed accurate as of the date it was written, and IS NOT intended to provide a complete analysis of statutes limitations; it may not reflect subsequent changes in the law, and it does not constitute an analysis of your specific case. For a full review of California's "statute of limitations" law, or for a determination of how the law applies to a specific incident or injury, please consult a qualified attorney licensed to practice in the state of California.
The above is not legal advice. That can only come from a qualified attorney who is familiar with all the facts and circumstances of a particular, specific case and the relevant law. See Terms of Use.
Feel free to contact us, or submit your personal injury case for a free review. We value your privacy. Your submission is confidential. We do not share your information with anyone. 818 716-6400.
Settlements vs. Lawsuits
It is, or it should be, the goal of every victim of an accident or injury and every attorney to settle a case fairly and avoid a lawsuit, if possible. Lawsuits, while necessary, are slow and expensive. If you believe in the adage “Justice delayed is justice denied,” then you understand why a lawsuit is not necessarily a good thing and, certainly, not the goal, but it is often necessary in order to force an insurance company to pay what it owes.
So, why do lawsuits have to be filed? If an insurance company under evaluated your claim, and if they refuse to negotiate, mediate or engage in any activity to increase their offer to a sum that is fair and compensates you for your injuries, expenses and losses, you have no choice but to file a lawsuit. To be fair, if a claimant over estimates his or her losses or believes that they are entitled to more money than their case or claim would be worth before a jury, the insurance company will hold the line and offer what they believe to be fair or reasonable, and the claimant will then have to file a lawsuit if he or she wants more.
In the current environment, which is to say a very conservative environment, insurance companies have been emboldened by juries who have become more and more conservative, and are less and less willing to render verdicts favorable to a plaintiffs [you.] To the insurance company claims departments, they are willing to take the risk of making very low offers and forcing claimants to file lawsuits. They believe that by forcing more people to file lawsuits, and increasing the risks and expenses to every person making a claim, people will be less likely to file claims; they will be more likely to accept low insurance company offers; and that the jury verdicts will be low enough most of the time to make this business practice profitable for them. Of course, there will be juries that render verdicts higher than what the insurance company wants to pay. However, there are enough claimants that are unwilling to fight for their rights and fight the insurance companies, that the money they save on “lowballing” the vast majority of claims is more than enough to pay for the favorable jury verdicts for those people willing to fight, and they still make handsome profits.
Sadly, the insurance industry and their lawyers have become very good at this unfair claims practice. Sadder still, is the fact that it has taken years for the plaintiff’s personal injury lawyers to understand the dynamics of this practice and adapt their trial skills to this environment. Most plaintiffs personal injury lawyers are still behind the curve here fighting the good fight but losing all too often.
The best personal injury lawyers have now become very skilled at dealing with the mis-conceptions and misunderstandings of juries in general and the jurors in particular and have now leveled the playing field, thus giving their clients a fair shot at a fair verdict.
Feel free to contact us, or submit your personal injury case for a free review. We value your privacy. Your submission is confidential. We do not share your information with anyone. 818 716-6400.
Your Doctor and Your Case
Your doctor is THE MOST IMPORTANT player in the cast of people who support you and your claim.
By definition you are pursuing a claim for BODILY INJURIES or WRONGFUL DEATH. This requires that your attorney be able to PROVE how the injuries or death was caused, the nature and extent of the injuries you are claiming, what treatment is REASONABLE and NECESSARY to treat those injuries, what is the COST OF TREATMENT, and what limitations or DISABILITIES the injuries cause.
Not all doctors are willing to become involved in a personal injury or wrongful death case. Many doctors take poor notes and keep poor records which undermine your attorney's ability to prove the damages in your case. Your doctor will need to write reports, be willing to have a deposition taken, assist your attorney in preparing for the deposition of the defendant's doctor, and he must be willing to and able to testify in court. Is your doctor willing to do all of this? If not, you need to find an doctor who can be a great doctor for you and a persuasive expert for a jury.
Chances are, your doctor, if he or she is willing, can fulfill these responsibilities. But, if your doctor is not willing to do this, your lawyer must make arrangements for you to be treated by a doctor who can do this important job.
How YOU Can Help Your Doctor
First, you absolutely MUST give the doctor a full and ACCURATE history. This means being complete in describing ALL of your injuries, not just the ones you think are the most important. You MUST also tell the doctor about ANY time in the past when you have injured, complained about, or received treatment for similar complaints for the same parts of your body injured in your new case. You must accurately report to your doctor, not just what injuries you continue to experience during the course of your treatment, but also what improvement you are making.
You or your attorney must also review the doctor's records and reports to make sure that they are accurate. If they are not, they must be corrected before they are used to support your case.
You must also follow yourdoctors instructions for treatment and medications. If you cannot, you must tell him, so thatthe treatment plan can be modified. What you do not want to do is give the defendants an opportunity to accuse you of NON COMPLIANCE with your doctor's advice.
Loss of Earnings / Lost Wages: How To Prove It
When you've been injured in an accident, its understandable that you may not be able to do your job. Your injuries may prevent you from working altogether, or you may have a partial disability that prevents you from doing portions of your job. Perhaps you are able to work, but you may have to take time off of work to attend appointments for doctors visits, physical therapy or medical tests such as an MRI. The law allows you to include in your injury claim loss of income. BUT, proving those losses requires very specific documentation. Without it, an insurance company will not consider your loss of earnings as part of your claim, and a jury will not include loss of earnings damages in a verdict.
If you're injured to the extent that you cannot work, either full duty or light duty, you MUST have a note or report from your doctor stating that you cannot work. Without documentation from a doctor, your time off of work will be unsupported and not proven to be connected to your injuries. Disability from work is a medical concept that requires a doctor's confirmation. The doctor will typically provide a limited number of days off work in the beginning. If your disability is longer than the first few days, you must return to the doctor to have your disability extended and renewed as long as you are unable to do your job.
Once you have medical support for your time off of work, you will need to establish the value of your time. Typically, this will be your rate of pay. It is easy to calculate your loss of income where you have a rate of pay that can be calculated as an hourly, daily, weekly or monthly rate. It becomes a matter of math. Unfortunately, this calculation is anything but easy for self employed people.
For the self employed, it is more difficult to prove a loss of income. Most self employed people are paid based upon the profitability of their businesses. This does not lend itself to easy calculation on an hourly, daily, weekly or monthly basis. Extended time away from work can be analyzed by comparing earnings during a similar period of time before the injury. A self employed person can hire someone to cover for him or her to keep the business going, and can claim that expense in addition to or instead of a loss of income. It is important that a self employed person keeps records showing the profitability of the business to support any loss of income.
Here are a few additional very important things to know about proving loss of income:
1. You don't have to be employed or have a job to claim a loss of income. Even if you don't have a job you may be able to prove a loss of income by establishing the value of your time in other ways.
2. If you have been working "under the table" and your employer is not taking payroll tax deductions from your paycheck, you will probably NOT be able to prove your loss of income. Why? Because your employer is not likely to be willing to produce supporting documentation of your income because he would be exposing himself to prosecution for failing to take payroll deductions and provide workers compensation insurance for you, all as required by law.
3. It does not hurt your case if you try to return to work as soon as possible. If you are able to do it, consider yourself lucky. If you can't, at least you can say that you tried. Jury's love people who try, even if they fail.
4. Keep track of your time off of work in a calendar or journal. It will be a great memory refresher later on if you need to testify in a deposition. It will also help to distinguish time off work for accident related reasons as opposed to missing time for other reasons, such as the flu or other illness.
5. Loss of earnings can include future loss of income. if you lose a good paying job due to an accident, and you cannot find another job that pays as well, you may be able to claim ongoing loss of income into the future.
6. Loss of income can include retraining to qualify you for another job if your injuries prevent you from returning to the kind of employment you had or the type of employment you have been trained to do.
When you've been injured in an accident, its understandable that you may not be able to do your job. Your injuries may prevent you from working altogether, or you may have a partial disability that prevents you from doing portions of your job. Perhaps you are able to work, but you may have to take time off of work to attend appointments for doctors visits, physical therapy or medical tests such as an MRI. The law allows you to include in your injury claim loss of income. BUT, proving those losses requires very specific documentation. Without it, an insurance company will not consider your loss of earnings as part of your claim, and a jury will not include loss of earnings damages in a verdict.
If you're injured to the extent that you cannot work, either full duty or light duty, you MUST have a note or report from your doctor stating that you cannot work. Without documentation from a doctor, your time off of work will be unsupported and not proven to be connected to your injuries. Disability from work is a medical concept that requires a doctor's confirmation. The doctor will typically provide a limited number of days off work in the beginning. If your disability is longer than the first few days, you must return to the doctor to have your disability extended and renewed as long as you are unable to do your job.
Once you have medical support for your time off of work, you will need to establish the value of your time. Typically, this will be your rate of pay. It is easy to calculate your loss of income where you have a rate of pay that can be calculated as an hourly, daily, weekly or monthly rate. It becomes a matter of math. Unfortunately, this calculation is anything but easy for self employed people.
For the self employed, it is more difficult to prove a loss of income. Most self employed people are paid based upon the profitability of their businesses. This does not lend itself to easy calculation on an hourly, daily, weekly or monthly basis. Extended time away from work can be analyzed by comparing earnings during a similar period of time before the injury. A self employed person can hire someone to cover for him or her to keep the business going, and can claim that expense in addition to or instead of a loss of income. It is important that a self employed person keeps records showing the profitability of the business to support any loss of income.
Here are a few additional very important things to know about proving loss of income:
1. You don't have to be employed or have a job to claim a loss of income. Even if you don't have a job you may be able to prove a loss of income by establishing the value of your time in other ways.
2. If you have been working "under the table" and your employer is not taking payroll tax deductions from your paycheck, you will probably NOT be able to prove your loss of income. Why? Because your employer is not likely to be willing to produce supporting documentation of your income because he would be exposing himself to prosecution for failing to take payroll deductions and provide workers compensation insurance for you, all as required by law.
3. It does not hurt your case if you try to return to work as soon as possible. If you are able to do it, consider yourself lucky. If you can't, at least you can say that you tried. Jury's love people who try, even if they fail.
4. Keep track of your time off of work in a calendar or journal. It will be a great memory refresher later on if you need to testify in a deposition. It will also help to distinguish time off work for accident related reasons as opposed to missing time for other reasons, such as the flu or other illness.
5. Loss of earnings can include future loss of income. if you lose a good paying job due to an accident, and you cannot find another job that pays as well, you may be able to claim ongoing loss of income into the future.
6. Loss of income can include retraining to qualify you for another job if your injuries prevent you from returning to the kind of employment you had or the type of employment you have been trained to do.