De Caro & Kaplen partner Michael V. Kaplen, a three-term president of the Brain Injury Association of New York State, and professorial lecturer at law, teaching a course in brain injury law at the George Washington University Law School, explains how attorneys can evaluate future loss of earnings in a brain injury lawsuit.
How should a brain injury attorney evaluate future loss of earnings for brain injury survivors in a personal injury lawsuit?
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, but losing their future earning capacity, the capacity to earn money.
What principles of vocational economics must be considered by the brain injury attorney when evaluating future loss of earnings?
- Individuals with a disability earn less money over their lifetime than non-disabled individuals.
- Individuals with a disability will have a decreased work life expectancy (how long they are expected to work).
- Persons with a disability, once becoming unemployed, have more difficulty in obtaining new employment.
- Persons with a brain injury, although employed, may work 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 keep their current job.
What must a brain injury attorney consider in evaluating impaired earning capacity for a client with a traumatic brain injury in a personal injury lawsuit?
In addition to calculating loss of earnings, the personal injury attorney must consider future impaired earning capacity and interfere with the ability to work and earning income.
- The personal injury attorney must calculate the loss of earnings over an individual’s pre-injury work life expectancy. How much will the brain injured client lose over their lifetime because of their brain damage?
- What would the brain injury survivors earnings have been if they were promoted?
- What are the chances of the brain injury client obtaining new employment if they are terminated from their current position?
- What is the result if needs of the brain injured employer changes, and the individual with a brain injury required reskilling or retraining?
What is the employment curve and how does it relate to loss of earnings in a brain injury personal injury lawsuit?
- An individual sustaining a brain injury at a young age or when commencing their career may lose that capacity to grow, to be promoted, to obtain a new job with new responsibilities at a higher income level.
- An individual with a brain injury may be frozen in their current position and unable to obtain a promotion.
- Individuals with a brain injury may not progress through the career cycle of employment. This inability to progress through the career cycle will have a significant lifetime earnings impact.
What steps should a brain injury attorney take in preparing future loss of earnings calculations in a personal injury lawsuit?
- A brain injury attorney must 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, 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 retained by the brain injury attorney must consider the behavioral and emotional impairments of the individual and how these impairments impair their ability to keep their job.
- The expert retained by the brain injury attorney must discuss the brain injured client with the employer and co-employees, to determine how the brain injury survivor can do their job and what problems are being observed.
- The vocational brain injury expert must consider what problems may develop what accommodations are available, and when is it impossible to provide these accommodations.
What should a brain injury attorney concentrate on in presenting loss of future earnings in the trial of a brain injury personal injury lawsuit?
The brain injury attorney should consider:
- The ability of the brain injured client to focus on a task,
- The ability of the brain injured client to remember details, to concentrate, to do more than one thing at the same time.
- The impairment in obtaining and maintaining current employment or seeking alternative employment opportunities. A brain injury survivor may obtain employment, but because of limitations and disabilities, they may not maintain their position.
For more information on brain injury attorneys and personal injury attorneys: https://brainlaw.com/brain-injuries/
About The Author
Michael V. Kaplen represents victims of vehicle collisions, unsafe buildings and construction sites, and medical malpractice, and is a preferred attorney of The Brain Injury Association of America.
Michael is board certified as a Civil Trial Advocate and board certified in medical malpractice litigation. He is a Professorial Lecturer in Law, The George Washington University Law School, The Legal Aspects of Traumatic Brain Injury.
Michael is past chairman of the American Association for Justice (AAJ) Automobile, Highway and Premise Liability Section, past chairman of the AAJ Traumatic Brain Injury Litigation Group, three term president of the Brain Injury Association of New York State served two terms as chair of the New York State Traumatic Brain Injury Services Coordinating Council and vice-president, New York State Academy of Trial Lawyers.
He was invited by President Obama to participate in the White House Healthy Kids & Safe Sports Concussion Summit.
He is admitted to courts in New York, Florida, and Washington, DC. He has been selected as a New York Super Lawyer and recognized by Best Lawyers of America and U.S. News and World Report in personal injury law.