I hurt my leg on a construction accident. My doctor told me that I will not be able to climb ladders anymore. But climbing ladders was a big part of my job. I will be out of work and eventually out of my union when I can not take any more jobs. Do I have a claim for my lost wages?
Absolutely you have a claim for your lost wages.
It sounds like it has been some time since your accident, so I will assume that you already notified your employer and the Worker’s Compensation Board. That claim will cover your medical expenses and part of your lost wages. I will also assume that since you were injured in a construction accident, that you are probably protected by the Labor Law. So you would have a personal injury claim against the general contractor and owner of the job site. I will focus on the lost wage claim.
Measure of Damages
A jury award for loss of future earnings may not be based upon speculation. Davis v NewYork, 264 AD2d 379, 693 NYS2d 230 (2d Dept 1999); Johnson v Danly Mach. Specialties, Inc., 183 AD2d 592, 584 NYS2d 26 (1st Dept 1992). The claim must be established with “reasonable certainty.” Shubbuck v Conners, 15 NY3d 871, 913 NYS2d 120 (2010). To establish with “reasonable certainty” lost future earnings, the injured party can chose one of two options at trial. One, they can offer evidence comparing the plaintiff’s pre- and post-accident income. Or two, a comparison of the plaintiffs post-accident income with the income of similarly situated employees of the plaintiff’s employer, Shubbuck v Conners, 15 NY3d 871, 913 NYS2d 120, 939 NE2d 137 (2010).
A lost earnings claim should be based upon plaintiff’s occupation at time of the accident. Marmo v Southside Hosp., 143 AD2d 891, 533 NYS2d 402 (2d Dept 1988). The proof of a loss wage claim can be complicated, especially in cases where a person cannot perform the job they did at the time of the accident, but can still perform other types of work.
Where the plaintiff returns to work after the accident but in a different job, the plaintiff must show that the earnings in the new employment will be less than the earnings in the former employment, Johnson v Danly Mach. Specialties, Inc., 183 AD2d 592, 584 NYS2d 26 (1st Dept 1992). Johnson v Danly Mach. Specialties, Inc., 183 AD2d 592, 584 NYS2d 26 (1st Dept 1992). So if you do get a different job you must prove that your wages (including medical benefits, salary, fringe benefits) was actually less than your new job.
Duty to Mitigate
As discussed in a prior post, you have a duty to mitigate your damages. That means you have a duty to go to the doctor and try to recover from your injury. And if you cannot fully recover from your injuries, you also have a duty to seek employment that is consistent with your abilities.
Depending on your prior education, training and experience, you must look for a new job. Furthermore, depending upon your aptitude, you also have an obligation to get retrained to seek new employment. (New York residents between the ages of 25 and 55 can obtain a free associates degree from a community college.)
Similarly Situated Worker
Your future lost wage claim would be based on the difference between your prior salary before the accident and your future job that a similar person (age, training, experience) could obtain. Naveja v Hillcrest General Hosp., 148 AD2d 429, 538 NYS2d 584 (2d Dept 1989) (The award should not have been based on plaintiff’s prospective employment as a laboratory technician where plaintiff never worked in that position, did not have the necessary degree, and was not actively pursuing such a degree at the time of the injury).
This is just an outline of the issues in your case. Your specific situation would determine the measure of your lost wage claim.
By James Santner, Esq.