Lost Wage Claims in Florida Injury Cases: What You Need to Know

Posted By on September 22, 2014

Last Update: 01/11/16

This article discusses collecting lost wages related to accident and injury claims in the State of Florida; injuries resulting from motor vehicle accidents, slip and falls and other common personal injuries.

You will find answers to questions like:

Let’s start with the basics; Florida state law provides that injury victims can be reimbursed for their lost wages after an accident. Lost wages are part of an injured party’s personal injury claim when they have been hurt in an accident caused by another person’s negligence. Additionally, workers are protected under Florida workers’ compensation law allowing for the recovery of some of their lost wages after an on the job injury.

What Are Lost Wages?

Look in the dictionary, and you can find “lost wages” defined in simple terms as the “potential earnings the insured was unable to receive due to an injury or disability.” [1] However, defining “lost wages” can be also be complicated, especially when things like Florida Statute 448.01 are involved. In Florida Statute 448.01, “wages” are explained as a full day’s work being a ten (10) hour working day, and all work thereafter being considered overtime for labor law protection purposes. [2]

However, when someone is hurt in an accident, a personal injury claim will include consideration of his or her work details at the time of the event. A personalized, individual wage history (which may include a history of hours worked per day and per week, hourly wages and/or salary, gratuities received like meals and/or tips, bonuses, and may state whether or not the injured party was paid during their absence) will be used to support a claim for compensation to cover those days, weeks, or months that they cannot do their job and earn a living.  Essentially, your lost wages are the income that you couldn’t earn because you were hurt in an accident. Your “lost wages claim” will be determined by your documented personal financial income records at the time of and before the accident (This may be a problem for some self-employed workers).

Remember, a “lost wages” claim is part of a larger accident claim that includes things like medical expenses, EMS charges, long term care costs, and other “economic damages” that make up an accident claim. (Economic damages are those damages that can be documented with things like invoices or other paperwork, unlike “general (non-economic) damages” like pain and suffering, loss of enjoyment of life, scarring and disfigurement, and mental anguish. Economic damages, once fully documented, are harder to challenge by the opposition and are easier to get paid when a demand is made).

How Are Lost Wages Determined?

Lost wages are determined using paperwork from your employer that confirms the exact amount of money that you would have received if you had not been hurt in the accident. Other documentation will be needed, as well, to support the amount of time that you were unable to work and to prove that your injuries kept you from doing your job.

For example, if you break your leg and you work as a dancer, then you will not be able to return to your job until your leg is completely healed and the doctor approves you going back to work. However, if you break your leg and you work as a graphic artist, then you may have problems getting to and from your job, but you should be able to sit at your design table and do a full day’s work while you still have a cast on that broken leg and it’s still healing. In this comparison, the dancer’s lost wages claim will be higher than the graphic designer’s lost wages claim because the dancer has a longer time period where she is not able do her work.

Additionally, “lost wages” can include a change in your ability to do your job. If you are permanently injured in the accident and cannot do the same type of work as you were doing before the accident, then your “lost wages” claim will expand to include “lost earning capacity.”

In the above example, if the graphic designer lost part of her ability to use her leg in the accident, then there would be some compensation for that loss but it might be paid in a different type of claim than lost wages. However, if the dancer lost partial use of her leg, then she would be able to extend her “lost wages” claim to “lost earning capacity,” since she would no longer be able to dance as she could before the injury.

How Do You Claim Lost Wages? What Documentation Do You Need To Do So?

Lost wage claim documentation includes things like:

Physician’s Written Opinion — a letter from your doctor or treating physician should be included with your claim. This letter should be signed by the treating physician, and it should include his or her professional opinion about the extent of your injuries and how they have compromised your ability to do your job.

The doctor should include supporting documentation for his opinion, too. Details should be provided that include treatments and therapies that you were given (along with dates and times); medications and prescriptions given to you both during and after any hospitalization; long-term therapies, a disability slip, and treatments that have been prescribed for you; and all medical bills related hereto.

Employer’s Confirmation — a letter from your employer that confirms you were employed on the date of the accident and that you have missed work because of your injuries. Most Human Resources departments are well-versed in how to document a lost wages claim for an employee. Most will know to include things like salary details; history of overtime if you are a non-salaried worker; bonus history; and other wage and income information.

What if you are self-employed? Then you may need to provide things like past tax returns and bank statements to confirm your income and revenue streams at the time of the accident.

Other Documents: Police Reports And The Names of All Treatment Facilities — Some insurance companies, when making a lost wage claim, will ask that the claim be accompanied with a police report that documents the accident itself. Of particular import here for purposes of calculating lost wages is the time and date of the accident because this is the starting point for calculation of the monetary lost wages amount.  The insurance company will also want to the know all places the injured party received treatment in order to verify the injuries and to see when the injured party went for treatment.

Are Lost Wages Covered Under PIP?

Florida is a “no fault” insurance state. This means that Florida law requires all drivers to carry “no fault” automobile insurance coverage that will provide them with a baseline of personal injury insurance coverage if they are in a traffic accident. This coverage is called “Personal Injury Protection” or “PIP.” [3]

In 2013, Florida’s PIP coverage was changed by the Florida Legislature. You need to be aware that PIP will cover the maximum amount of $10,000 as long as your physician confirms that you have an “Emergency Medical Condition“ at your first medical visit, and you must be seen by the doctor within fourteen (14) days of the accident.

Pursuant to Florida Statute 627.736, lost wages remain covered as part of Florida’s PIP coverage.[3] These lost wages are covered regardless of whether or not you were at fault in causing the crash.

PIP coverage of lost wages is in addition to: (1) liability bodily injury coverage on the insurance policy of the person who caused the accident in which you were hurt; and in addition to (2) the coverage provided by your own uninsured / under-insured insurance coverage on your policy in the event that the at-fault driver has insufficient coverage to pay for your injury claim.

According to the PIP Statute, the coverage provided is as follows [5]:

Sixty percent of any loss of gross income and loss of earning capacity per individual from inability to work proximately caused by the injury sustained by the injured person, plus all expenses reasonably incurred in obtaining from others ordinary and necessary services in lieu of those that, but for the injury, the injured person would have performed without income for the benefit of his or her household. All disability benefits payable under this provision must be paid at least every 2 weeks.

Lost Wages Under Workers’ Compensation Law

If you are hurt on the job in Florida, then special laws come into play to cover your accident and your injury claim. Workers hurt on the job in Florida look to the Florida Workers’ Compensation Act not only for what damages are covered but how claims are made and what kinds of damage claims will be paid.

For instance, if you are hurt in an accident at work then you will not be able to sue for punitive or exemplary damages in a lawsuit as you might be able to do in a standard car crash case involving gross negligence. Currently under Florida law, you must seek relief through the Workers’ Compensation system for your lost wages as well as your other injury claims.

This system is established under statutes enacted by the Florida Legislature and how your lost wages claim is documented and pursued is specific to the rules and regulations set up within this Workers’ Compensation System.

NOTE: The extent of coverage provided to Florida workers by the current Florida statutes may change in the future and the inability of Florida workers to sue in a private civil lawsuit for injury damages may be nearing an end.

1.  The Florida Workers’ Compensation Act was held to be unconstitutional by a Miami court in August 2014; this case is being appealed to Florida’s 3rd Circuit Court of Appeals. See, Florida Workers’ Advocates v. State of Florida where Judge Jorge E. Cueto of the 11th Judicial Circuit Court ruled that the present law is unconstitutionally prohibitive as the ‘exclusive remedy’ offered to Florida workers for lost wage claims (and injury damages).[6]

2.  Additionally, the Florida Supreme Court is presently considering another challenge to the current Florida worker’s compensation law which may also dramatically change certain worker’s compensation coverage for lost wage and injury claims based upon on the job injuries. The High Court is considering firefighter Bradley Westpahl’s challenge in Westphal v. City of St. Petersburg, where the 1st District Court of Appeals held the Florida Workers’ Compensation statute to be unconstitutional. [7]

If the Florida Supreme Court agrees with the lower appellate court’s determination (or with other challenges to the current statutory framework, such as Judge Cueto’s ruling), then how lost wages and other injury claims are paid for workers hurt on the job in Florida will be radically changed.

How Does A Jury Calculate Lost Wages In A Florida Injury Claim?

There are times when demand letters and attempts at negotiating a reasonable settlement after an accident just don’t work. In this situation, a lawsuit must be filed in order to get the responsible parties to take responsibility for the harm that has been done to the injury victim. Filing a lawsuit is a big step; however, there are several steps in the litigation process where settlement of a claim can still occur.

If the other side remains stubborn or unreasonable, the case may proceed to trial.  Then, the decision of compensation will be given to the jury, as fact-finder, to make a determination of what they believe is fair and just. Here, evidence is provided at trial of the victim’s injuries, long-term prognosis, wage history, and other elements of his lost wages claim and other elements of his overall injury claim.

The same documentation and support for lost wages discussed above is provided for the jury’s consideration. In some cases, expert testimony in the form of medical experts or experts in particular kinds of occupational skills may also be involved as added support for the plaintiff’s claim.

For instance, in the above example, a professional dancer might testify as an expert witness for the injury victim, explaining to the jury the number of years in the career of most professional dancers or how the full use of both legs are imperative for the type of dancing the injury victim did on the job before the accident. This would help support the victim’s lost wages in future earning capacity claim.

Once all the evidence has been presented to the jury, which may or may not include the victim testifying on the witness stand about things like his/her inability to work a full day or change in his/her ability to do the same kind of work due to the injuries sustained in the accident, then the jury will be sent back to the jury room to deliberate and decide what amount the injured person rightfully should receive.

However, before the jury is sent to deliberate, the judge will instruct them with specific “jury instructions” on how to calculate these damages. Using the instructions provided by the judge, the jury will then tally an amount to be awarded as lost wages, both for the past as well as any future wages in the form of lost earning capacity, using the evidence provided during the trial.

Conclusion

In Florida, if you are the victim of an accident and suffer bodily injury, then Florida law allows you to recover several types of compensation, including lost wages. Lost wages can include past wages as well as future lost wages due to a change in your ability to perform the work you did prior to the injury or accident. Your lost wages may be paid from a variety of sources, including your own insurance coverage (PIP, under-insured coverage); as well as the coverage of the person at-fault or that of Workers’ Compensation.

Not having the ability to pay one’s bills as they come due can be extremely stressful and one of the most frustrating parts of an accident’s aftermath. Luckily, Florida law provides remedies to help injury victims get reimbursed for their lost wages after an accident so that justice may prevail.

What Should You Do Now?

A good piece of advice if you intend to pursue a lost wage claim, is to at least speak with an experienced personal injury lawyer before you file a claim to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.

Related:

See – 5 Things You Get From Alan Sackrin and How They Can Help You!

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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.

 

 

Endnotes

[1] BusinessDictionary.com – Definition of Lost Wages

[2] Florida Statute 448.01 (2014)

[3], [4] Florida Statute 627.736 (2014)

[5] Florida Statute 627.736 6(b)

[6] See, Harrison, Sheena, “Florida exclusive remedy ruling may upend workers compensation system,” Business Insurance, August 31, 2014.

[7] Westphal v. City of St. Petersburg.

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Comments

2 Responses to “Lost Wage Claims in Florida Injury Cases: What You Need to Know”

  1. Alan Sackrin says:

    We are not allowed to answer personal questions in blog comments, so we would ask you to feel free to contact our offices if you’d like to discuss the situation with us over the phone. There’s no charge, we have a free initial consultation policy here. Thanks for writing!

  2. Gaye Lynn Dilek Brewer says:

    I have a defamation suit now with Escambia County.
    Would you be interested in taking this case?
    Thank you,

    Gaye Lynn Dilek Brewer

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