In this episode, Brain Injury Insider host Michael Kaplen discusses how brain injury attorneys calculate future loss of earnings for brain injury survivors, and how this is an important factor in obtaining full and fair compensation for an individual’s injury.
How do brain injury attorneys look at the issue of future loss of earnings for a brain injury survivor?
A survivor of brain injury caused by someone else’s negligence is entitled to be reimbursed for future loss of earnings. Not only for what they have lost to date, but the loss of their future earning capacity. There is a difference
between loss of earnings to date and the capacity to earn money in the future.
Certain principles of vocational economics must be kept in mind by the brain injury attorney when evaluating future loss of earnings:
First, individuals with a disability earn less money over their lifetime than non-disabled individuals.
Second, individuals with a disability will have a decreased work life expectancy (how long they are expected to work).
A vocational economic analysis must also consider the following principles.
Persons with a disability, once becoming unemployed, have more difficulty in obtaining new employment.
Persons with a brain injury, although fully employed, may be working at a lower pay grade, or may not be promoted.
Persons with a brain injury, because of their injury, cognitive problems, behavioral issues, may not be able to keep their current job.
So what are we looking at?
In addition to looking at how much that individual has lost to date, we are looking at their impaired earning capacity in the future.
How much will they lose over their lifetime because they have sustained a brain injury?
What would the earnings have been if they were promoted?
What are their chances of finding new employment if they are fired?
What happens if the employer’s needs change, and the individual needs to be reskilled, and they are unable to do so because of that brain injury?
These are all questions that might interfere, and might impair a person’s future earning capacity.
It is important to look at where the individual is on the employment curve.
If they sustained their brain injury when they were young and just starting out in their career, they may lose that capacity to grow, to be promoted, to obtain a new job with new responsibilities at a higher income level.
Their brain injury may cause them to be stuck in their current employment. Again, causing a significant loss of future earning capacity.
Individuals with a brain injury are more likely not to be able to progress through the career cycle of employment. This inability to progress through the career cycle will have a significant lifetime earning impact.
So what does a brain injury attorney need to do?
He or she needs to retain the services of a vocational rehabilitation economic expert to consider the injuries that the brain injury survivor has, the limitations that those injuries have on the ability of the
individual to earn money and to be employed, and to calculate future loss of earnings in addition to loss of benefits, and factor in inflation.
The vocational expert must consider what tasks the brain injury survivor can do, what tasks are limited, what tasks are impossible.
The expert has to look at the behavioral and emotional problems of the individual and how that might impair their ability to keep their job.
The expert needs to speak to the individual’s employer and to co-employees to determine how the brain injury survivor is able to do their job and what problems are being observed.
The expert has to consider what problems may develop in the future, what accommodations are available, and when is it impossible to provide these accommodations.
The ability to focus on a task, to remember details, to concentrate, to be able to do more than one thing at the same time, all may impair the ability of an individual to obtain a job, to maintain a job, or to obtain new employment.
A brain injury survivor might be able to get a job. But because of their limitations and disabilities, they won’t be able to keep that job.
These are factors that attorneys and their experts must consider, and must appropriately, demonstrate to a jury in order to obtain full and fair compensation for a brain injury survivor.