Scarlett Law Group:
Spinal Cord Injury Attorneys in California

WAGE LOSS/LOSS OF EARNING CAPACITY

Special damages are more important today than ever before. In spinal cord injury cases, your clients will have significant demonstrative losses. DO NOT OVERREACH. If your client can possibly work, explore all options with an appropriate vocational rehabilitation specialist. Present several alternative options, leaving the jury with the option.

Two experts are absolutely required in order a proper presentation of a client's wage loss/loss of earning capacity claim is presented. The first is a vocational rehabilitation specialist. The second is a forensic economist.

The vocational rehabilitation counsel will consult with each of the plaintiff's treating doctors and will often times review pertinent medical records. In addition, the vocational specialist will test the plaintiff in order to determine what transferable skills exist and what vocational endeavors are truly possible.

Beyond the strictly forensic purposes of the vocational rehabilitative counselor, a plaintiff will often times fundamentally benefit from his/her contact with the vocational rehabilitative counselor. Previously unthought of capabilities and career paths are often revealed. From an emotional standpoint, the trial lawyer benefits the client through contact and access to a vocational rehabilitative counselor.

A vocational rehabilitative counselor will likewise explore the pre-injury course of employment with plaintiff. A host of factors is examined depending on the age of the plaintiff. For example, where a plaintiff has not yet reached the age of majority, educational performance, education attained by parents, results from school testing, including intelligence tests and a host of other factors are taken into account by the vocational specialist in order to reasonably project probable levels of educational accomplishment and probable vocational options, but for the injury causing event.

The goal is to reasonably project in "probable terms" the educational path and vocational path the plaintiff would have pursued (including pay scale), but for the injury, and the post-morbid transferable skills of the plaintiff, including expected pay scale for such vocation.

While in the most catastrophic of spinal cord injury cases, vocational endeavors will be precluded, rarely, if ever, does it benefit a plaintiff to claim a total wage loss where some vocational capabilities exist. Accordingly, unless counsel is absolutely certain that vocational endeavors would be totally precluded, given the extent of injury, proper work-up of a spinal cord injury case necessitates a strong vocational rehabilitative specialist.

Once the vocational specialist's work is complete, his/her information should be conveyed to an appropriate forensic economist. While the forensic economist's work is not limited to the area of past, present and future wage loss, (the economist will also set forth appropriate damages for the life care plan/present value of future medical expense), it is the economist's burden to carefully review all wage information and documentation of the plaintiff. The past wage loss, from the date of insult, is compiled.

The economist, based on the vocational rehabilitative findings, computes plaintiff's lifetime earnings capacity (in solid dollars), but for the injury causing event. Often times, and dependent upon the age of the plaintiff at the time of insult, an economist will present two or more scenarios of earnings capacity. Obviously, no one is prescient enough to predict with unerring accuracy the exact vocation, pay scale, and work length that a given plaintiff would have definitely pursued but for the injury. While the probable estimate becomes easier when the age of insult is later in life, the economist must necessarily testify as to the most probable losses based upon the most probable pre-morbid career path or paths.

Where minors are involved, the economist will determine lifetime wage loss based on expected pre-morbid educational accomplishment. In other words, an economist can state, to a reasonable degree of economic probability, what an individual in a given area of the country could expect to make were that individual to graduate from high school, injury free, or alternatively, graduate from college, injury free. If the minor's parents have achieved graduate or post-graduate college level, adjustments to the projected earnings will be made accordingly.

Mitigating income is determined based upon those transferable skills and potential job options determined to be appropriate by the vocational specialists. Mitigating income will be limited by the projected post-morbid work life expectancy determined to be appropriate by the medical specialist.

The forensic economist greatly assists the jury through determining appropriate net discount rates, rates of inflation, and necessarily, the economist's opinion is based on sound, historical, and governmental data. The forensic economist further assists the jury in understanding present value. Since most jurisdictions require future losses be relegated to present value, a strong forensic economist is a necessity in a spinal cord injury case.

Even where vocational mitigation is impossible due to extent of physical injuries, the forensic economist necessarily must compute and state valid opinions as to the past, present and future wage loss of the plaintiff. Perhaps now, more than any other time, jurors' total awards appear to be anchored in the special damage loss established by the plaintiff. Tragically, spinal cord injury cases provide counsel with ample opportunity to establish significant special damages.