Lost Wages, Lost work time, Lost Vacation Pay, Lost Sick Time And Automobile Accidents or other Personal Injury Claims
If you have been in a serious automobile, motorcycle or crosswalk accident, chances are that you will experience some downtime from work. Unfortunately, if you are not one of the lucky few who purchased short-term or long-term disability insurance or if your employer does not provide them as a benefit, you may have to go some period of time without getting paid.
That can be very stressful.
Understand that even if you are missing work and even if you beg, the at-fault driver’s insurance company most likely not going to send you monthly checks to replace your income. This is tough on people who live payday to payday. Instead, the insurance company, such as State Farm or Nationwide, or Progressive, will wait until you have achieved “Maximum Medical Improvement” before evaluating your case and making an offer of money as a settlement. This settlement will include compensation for allowed medical charges, pain and suffering and lost wages.
We have to stop here and make sure you understand one simple truth. This is something that absolutely bothers most people because regular people live in a universe of “truth” and “morals” or “natural justice.” The phrase I hear a lot is: “What’s right is right.” But an insurance company, and its adjusters, and us attorneys live in a different universe. Our universe in the case of torts or personal injury is made up of the Law of Contracts, instead of natural or human law. And we live in a world of proof: What can be proven as opposed to what is the real truth. Most of the time the truth can be proven but sometimes it cannot. So, you have to think in those terms. You must PROVE YOUR FACTS!
THE AT-FAULT DRIVER’S INSURANCE COMPANY DOES NOT OWE YOU ANYTHING. ITS CONTRACT IS WITH ITS INSURED. IT DOES NOT HAVE TO BE FAIR BUT IT CANNOT COMMIT FRAUD. THE INSURANCE COMPANY DOES NOT HAVE TO MAKE SURE YOU HAVE PROVIDED ALL OF THE NECESSARY DOCUMENTS TO PROVE YOUR CLAIMED DAMAGES. AGAIN, THE AT-FAULT DRIVER’S INSURANCE COMPANY DOES NOT HAVE A CONTRACTUAL RELATIONSHIP WITH YOU! ITS CONTRACTUAL RELATIONSHIP IS WITH ITS OWN INSURED. SO START WITH THE BASIC UNDERSTAND THAT THE AT-FAULT DRIVER’S INSURANCE COMPANY DOES NOT HAVE TO MAKE SURE YOU HAVE MAXED OUT YOUR POTENTIAL RECOVERY. IT WILL MAKE AN OFFER BASED ON WHAT IT KNOWS. AND WHAT IT KNOWS IS WHAT YOU PROVIDED.
An insurance adjuster may ask you for certain documents. They may ask for your medical bills, a signed release so that it can gather ALL your medical records your medical records, and maybe, just maybe, documentation to establish lost wages.
But then again, they may not ask you for anything. They may just let the claim sit until the statute of limitations runs out at which time they will let you know your claim has expired.
Why? Why not just be fair to the injured person? Well, the insurance adjuster, among many other functions, has five main jobs:
Since the topic of this blog is “lost wages and your personal injury case” let’s give the insurance adjuster the benefit of the doubt, for now. When the time comes to start presenting documents the adjuster may ask: “Did if you had any ‘lost wages?’” A legitimate question. The problem is, and I have seen this time after time, that most of my clients do not fully understand the question.
For example, let’s say that you are injured in an automobile accident near the beginning of the new year. You have built up six weeks of vacation pay and three weeks of sick time. Let’s say that it took you seven weeks to heal up and to get back to work without any restrictions. To survive, you tapped into your vacation and sick pay, using all of your vacation time and one week of your sick time – some vacation!
Anyway, when the adjuster asks: “Do you have any lost wages?” Many people think for a second and then answer “N0.”
Why? Because in their mind, they did not lose any wages, they were paid, in full, through sick time and vacation pay. In other words, in their minds, they did not lose a penny and therefore they have no claim for lost wages.
The Adjuster does not have to correct you. The adjuster is not under any obligation to stop and ask following questions:
Did you use any vacation time?
Did you use any sick time?
Many do, but not all.
Once you answer “No,” the conversation moves on to other things and you just handed the insurance adjuster a big win. It is not illegal. It is not immoral. It is contractual and you just lost a great deal of money without ever knowing the difference.
The answer should have been:
“Yes, I have lost wages. I had to use all of my vacation pay and some of my sick pay. I would like to get all of that money back.”
The adjuster will respond: “OK. How can you prove that?”
This is the easiest type of “Lost Wage” to prove. All you have to do is send the insurance adjuster a copy of your pay stub for the pay period BEFORE THE AUTOMOBILE ACCIDENT. This will establish 1) you rate of pay and 2) the amount of vacation and sick time available on that date.
Then you simply send all of the pay stubs while you were healing up from your accident or collision. Add up all of the GROSS PAY, not your NET or take home pay attributable to the sick time and vacation time pay. Once it is all added, there it is, you have the amount of your lost wage claim. Type It up neatly and send it to the insurance adjuster.
Another way to prove the amount of your lost wages is through your HR person at work. Most HR professionals are very familiar with providing proof of lost wages in their employee’s Mesa personal injury or AZ automobile cases. Many HR Departments have their own forms they will fill out for you to supply to the Insurance Adjuster or to your attorney. Most of these letters or forms contain the following information:
But you need one more thing…
There will be a very good chance that the adjuster will want something to establish the “medical necessity” for lost time from work. Many times, this comes in the form of a prescription or a letter from your medical doctor who will give your employer a range of dates that he or she says you must miss work. For example, January 1, through February 10. Thus you should be back at work on February 11th. If that time needs to be extended because your recovery has not gone quite as planned, say an additional ten days, the doctor will have to write another letter or prescription indicating that you cannot work and why.
This is very important. Everything in an automobile injury near Mesa claim must be verified by a medical doctor, chiropractor or whoever you go to for medical care. You cannot simply call in sick for six weeks and tell the adjuster that your neck hurt too bad to work. You have the “burden of proof.” and you must appear to be reasonable, logical and truthful.
Remember, the insurance adjuster owes you nothing. His or her loyalty is to her insured and to his or her insurance company. Your injury is a claim number and the longer it is open, the more of a bother it is to the adjuster. So, they do want to close their claims as quickly and as cheaply as possible.
Now, one of the more complicated claims in an automobile, motorcycle or crosswalk personal injury claim is the person who is claiming lost wages as a self-employed person, especially if you are, basically, the whole business. There are so many factors involved for the self-employed business person:
This can be a daunting task for the injured people who chose to represent themselves. I know there have been times throughout my career where I struggled to reach a number I thought was fair for my client, especially when he or she is the whole business. In those cases, where the injured person lost deals there are a couple of things you can do.
The best is to get a letter from your potential customer. Hopefully, they will write down that it was their intention to hire you and that they would have but your injury got in the way. Then it is a matter of calculating your expected profit and showing the adjuster how much you lost on this lost on pending or almost complete business deals.
How do you establish how much money you lost without any pending or almost complete deals? Often times, an injury will stretch out long enough so that the injured self-employed person makes little to no money over a six month, or more, period of time. The injury can outlast all current, pending and almost completed deals.
Now you have to rely on history.
This can be particularly complicated in cases where the injured self-employed business person co-mingles their personal expenses inside the business checkbook without a very good record keeping system. That can get very confusing. What is the business income? Which purchase is a legitimate business expense? Which purchase was solely for the benefit of the owner or the owner’s family? When everything is jumbled up in a single checkbook or bank account, calculating a true picture of historical profit can be very difficult.
In those situations, a Certified Public Accountant (CPA) or, in cases where the records are really bad, a Forensic Accountant, is your best friend. They can, with your help, of course, go through your tax returns, bank statements and canceled checks or debit card expenses and calculate a true profit and loss for your business over the span of a number of months if not years.
An accountant can do more than just establish probable lost profit. If your business has been growing at a steady rate over the years, you are going to lose some of that growth forever. No small business grows while the owner is flat on his or her back.
Accountants can make projections and establish to a reasonable degree of certainty, how much your business value would have grown had you been working your business instead of laying in a hospital bed or attending physical therapy treatments.
Accountants, CPA or Forensic, can be an expensive proposition but many times, paying them to work on your behalf is money well spent. Paying an accountant $5,000.00 to make a legitimate $50,000.00 claim, is money well spent and one of the best investments you will ever make.
Finally, if you are going to present a Lost Wage claim, you must be accurate. The last thing you want to do is hand the adjuster a box of bank statements and check stubs with a wage loss estimate that is not reality based. Credibility is everything when dealing with an adjuster. If it is going to take some time to put your claim together, no worries. Just tell the insurance adjuster and he or she will wait but understand the adjuster is not going to do your work for you.
Remember, in Arizona the Statute of Limitations to file a lawsuit for an automobile accident, crosswalk injury or motorcycle injury is two years. In most cases, two years is more than enough time to heal up and get your lost wages records straightened out.
If you need help making a lost wages claim, whether it was because you were hit by a car and injured while simply walking across the street whether in a crosswalk or not or if you were injured while on a motorcycle just enjoying a spring or fall ride down a nice country road or if you were injured in an intersection while driving your car straight through a green light, only to be suddenly T-boned by a driver making an illegal left-hand turn, or for any reason, please do not hesitate to call my office at (480) 275-4894. Put my 30 years of experience and dedication and relationships to work for YOU!
Daniel Marco – Marco Injury Law
1166 E Warner Rd #101
Gilbert, AZ 85296
Email: [email protected]