In a personal injury claim, there are traditionally three elements of “damage” that may be claimed by the injury victim - Medical Expenses, Lost Wages, and Pain and Suffering. This article will focus solely on the lost wage component, as some issues and pitfalls may hamper your ability to recover money for missed work time.  

Medical Recommendation for Time Off Worklost wages claim

Initially, time off work is a common recommendation by a health care provider to a patient who has suffered injuries in a car accident. Obviously, a more serious injury, such as a fracture or one that requires surgery, will likely trigger a recommendation to stay off work during the healing process. But many seemingly “routine” injuries, such as neck, back, or joint sprains, may also benefit from some period off work to avoid further injury and to shorten the healing process.  

A critical building block for a successful lost wage claim is a medical opinion from your health care practitioner. The opposing insurance carrier will typically reject a lost wage claim where the victim decides on their own to stay off work. Instead, a successful claim for lost wages begins at your very first medical appointment. Whether you are meeting with a physician, a physical therapist, or other specialist, initiate a specific discussion about your job duties and whether the medical practitioner believes time off work is beneficial in light of your injuries. Suppose you deliver heavy packages for Amazon, do plumbing work, do nursing, or any other job that places physical demands on you. In that case, it is critical that you let your health care provider know the details of your job duties so they can make an informed decision about time off work.  

Off-Work Directives

Hand in hand with that, if your doctor/therapist recommends time off work, that recommendation must be written down somewhere in your medical chart, either at the end of the first visit note, or in a separate disability slip signed by the physician. Even if you are self-employed and don’t need to bring a disability slip to show your boss, get one anyway. The mantra of the insurance industry is “If it isn’t written down, it doesn’t exist.” So, eventually, you or your attorney will need that written proof to present to the opposing insurance carrier. A simple failure to obtain a written “off work” directive could thwart a lost wage claim worth thousands of dollars. 

The initial off-work directive will usually expire on a certain date. For instance, your doctor may issue an initial 10-day off work directive pending a medical re-evaluation at the next appointment. If at the next appointment, the doctor thinks additional time off work is still necessary, they should issue a follow-up disability note covering an additional period of time.  Make sure you get a copy of that, too. In the traditional case, as your injuries improve, you may be cleared to return to either light duty status, if available, or full unrestricted duties. As before, documentation at each stage is critical. 

What are Lost Wages?

Many new clients believe that they did not lose any wages after a traffic accident because they used sick days, vacation days, or personal time off at work. This is a misunderstanding of the law. Under Maryland’s collateral source rule, the other motorist who injured you does not get the benefit of you having available vacation days or other leave options at your workplace. If you missed time from work due to your injuries, you may claim for the time you missed, even if you used sick leave or vacation time to continue your wages.  This may seem like a double payment, but it is the law. You can also claim partial days/hours off work if you were back at work but had to leave work to attend a required medical appointment.  

How are Lost Wages Calculated?

How are lost wages calculated? This may be the most complex part of this discussion. The calculation of lost wages for an hourly employee is pretty simple. Multiply the hours you missed by your hourly pay rate for the total. Our firm uses a form that can be filled out by the client’s supervisor/H.R. Department to detail rates of pay, including overtime premium and days/hours missed. The completed sheet is then used to calculate the lost wage total and is often sent to the insurance adjuster in proof of the wage claim. 

However, many people do not work in standard hourly wage professions.  Whether business owners, part-time ride-share drivers, commission based realtors, etc., some clients present with complex employment/income scenarios that require careful exploration and which receive significant scrutiny, if not protest, from the opposing insurance carrier. For ride-share drivers, for example, we ask the client to download two months of pre-accident earnings through the ride-share app to try to derive an average weekly expected earnings figure. But wait! Ride-share drivers pay for their vehicle operation expenses, the biggest being gasoline.  So, the driver may have been off work for two weeks after a traffic collision and may have averaged $315 per week in gross earnings, but their “saved costs” must be deducted from that average in recognition that the driver was not burning through gasoline while off work. We try to apply a conservative 1/3 to 50% reduction to account for operating costs saved while off work. So, a $315 “gross” average may be a $200 net loss when submitted.  

Documentation and Verification

As before, documentation of any unusual wage claim is key. We have had clients claim lost contracts in the landscaping or

moving industries but could not prove that an opportunity was lost rather than just deferred for two weeks. Some people work on flex time, so when they leave their computer in the middle of the day to attend a doctor's appointment, they can make up that time later in the day. In that case, they probably don’t have a viable wage claim. 

It is routine for a claim rep to call a client’s employer to verify employment, pay rate, etc. Suppose a claim rep believes a victim’s wage claim is inflated or miscalculated. In that case, they may demand copies of prior tax returns, W-2s, and pay stubs to verify a victim’s claimed earning rate before accepting the wage claim as valid. A conservative, easily understandable wage claim is the gold standard if the victim is to avoid months of delay and the submission of more supporting documentation. 

Howard Simcox
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Gaithersburg Personal Injury Attorney
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