Can I Recover for my Future Lost Wages in a Personal Injury Claim?
Past lost wages are generally a straightforward matter. In a serious personal injury action, though, the injured person’s future earnings must be considered. This occurs in two ways. If that injured person will be incapacitated for a period of time after the trial and was working prior to the injury, a reasonable measure of damages is the average wage earned prior to the incapacity, projected over the length of the incapacity.
“In an action for personal injuries, a plaintiff may recover for loss of future earnings which will reasonably and probably result from the tort. Monias v. Endal, 330 Md. 274, 623 A.2d 656 (Md., 1992). Alternatively, “[a] tort victim suing for damages for permanent injuries is permitted to base his recovery on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury.” Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 595, 94 S.Ct. 806, 819, 39 L.Ed.2d 9, 26 (1974).
What if the person is not working at the time of the injury, or, has just started a new career that is expected to yield income, but has not yet? Consider that this person cannot any longer work in that new field because of their injuries. That is a different type of claim.
Baltimore Personal Injury Lawyer Tips: A loss of earning capacity claim is different than a claim for a loss of future wages claim.
“There is a distinction between loss of earnings and loss of earning capacity. A person is entitled to compensation for the lost capacity to earn, whether he would have chosen to exercise it or not. As attorney Eric T. Kirk will tell you, most courts which have discussed the subject have held that it is not necessary to show either the plaintiff’s earnings prior to the injury or decrease in earnings after the injury in order to establish the fact of loss of earning capacity.” Monias v. Endal, 330 Md. 274, 623 A.2d 656 (Md., 1992) How does one prove what their “earning capacity” is? “Essentially, an accident victim is entitled to be compensated to the extent his or her power to work in an activity that produces income has been reduced by the injury. There is no fixed rule by which the amount of damages for diminution or impairment of earning capacity may be definitively measured. Instead, all relevant facts on the issue must be considered. The prevailing proper measure of lost earning capacity is the difference between the amount that the plaintiff was capable of earning before his injury and that which he is capable of earning thereafter. Essentially, the plaintiff must establish the disparity between the market value of his services before and after the injury.” Anderson v. Litzenberg, 694 A.2d 150, 115 Md.App. 549 (Md. App., 1996).
As you might imagine, these types of cases can become complex. Typically, the expert testimony of one or more economists, vocational experts, or those practicing in other related disciplines, is needed to prove the claim.
How an Economist and a Vocational Rehabilitation Expert Might Build a Winning Loss-of-Future-Earnings Case.
A loss-of-future-earnings (or diminished earning capacity) claim seeks compensation for the gap between what a person likely would have earned absent the injury and what they can realistically earn after it. The most persuasive often presentations pair a vocational rehabilitation expert (VE) with an economist. The VE determines what work is feasible and at what pay; the economist converts those pathways into time-phased dollars, then discounts them to a defensible present value.
- Establish the “but-for” baseline (VE).
The VE begins usually with a pre-injury profile: education, licenses, certifications, union status, seniority, performance reviews, and demonstrated skills. They map career ladders and typical earnings trajectories for that profile (e.g., apprentice → journeyman → foreman; staff RN → charge nurse → NP). This includes worklife expectancy (years to retirement), expected promotions, and the value of fringe benefits (health, retirement match, overtime differentials, bonuses).
- Translate medical limits into work capacity (VE).
Using treating-physician notes, operative reports, medication lists, and a Functional Capacity Evaluation (FCE) where available, the VE defines residual functional capacity: lifting limits, standing/walking tolerance, fine motor demands, cognitive speed, attention, memory, and pain-related persistence. The VE ties these limits to recognized job demands using O*NET/DOT task analyses.
- Identify realistic jobs and wages (VE).
Next, the VE may conduct a transferable skills analysis and labor-market survey. They confirm, with local data, which jobs are actually available to someone with the claimant’s restrictions and background, the entry requirements, and prevailing starting wages. They also address barriers—age, gaps, lack of a driver’s license, medication side effects—and the feasibility of reasonable accommodations under the ADA. The output can have two pathways:
Pre-injury earnings path (what would likely have occurred);
Post-injury earnings path (what is now attainable), including expected job-search latency, part-time probabilities, and reduced worklife if flare-ups or fatigue increase future unemployment risk. - Hand-off to the economist
The VE provides the economist with year-by-year earnings streams for both pathways, including benefit load assumptions (e.g., 24–32% of wages for health/retirement/overtime). Where appropriate, the VE also quantifies lost household services hours for separate valuation.
- Project to trial horizon (economist).
The economist may apply industry- and region-specific wage growth to each stream, sources benefit escalation appropriately, and uses worklife tables to reflect the probability of labor force participation over time. If mitigation has already occurred (e.g., the plaintiff found lower-paid work), the economist credits actual earnings and integrates them into the post-injury path.
It is a virtual certainty that if the Plaintiff employs an expert to demonstrate their lost capacity, the insurance company will hire one or more experts to diminish, deny or defeat that claim. A compelling loss-of-future-earnings case is a two-expert relay: the VE defines feasible work and pay with medical fidelity, and the economist turns that pathway into present-value dollars using conservative, transparent finance. When assumptions are aligned, sources are local and current, and the team walks the jury step-by-step from injury to numbers, the result reads as careful, fair, and credible—the kind of analysis fact-finders trust. If you’ve been injured, I’d be honored to personally meet with you to go through the specifics of your claim. This initial legal analysis and case opinion is a complimentary service I offer to my prospective clients.
- Baltimore Personal Injury Trial Lawyer Eric T. Kirk
- Legal Analysis & Case Studies
- Baltimore Insurance Claims Denial Lawyer
For over three decades, I have battled against the nation’s largest insurance companies, always endeavoring to ensure my clients receive the compensation they deserve. As lead counsel in thousands of cases across Maryland, New York, and Florida, I have recovered millions for clients whose claims were wrongfully denied and delayed. Whether denying fair compensation for a personal injury victim or denying benefits to a homeowner, Insurance companies employ policy exclusions, technicalities, and lowball offers to deny and defeat claims. They also hire very good lawyers to fight you in court. So should you. When an insurance company unfairly rejects a claim, I stop them.
