Recovering for lost earning capacity ma

In Massachusetts, people who are unable to return to their previous occupation due to an injury may be able to recover damages for loss of earning capacity.  In certain cases, if someone has sustained serious injuries and cannot return to their trade or occupation, the use of an economist or vocational expert may be required to assist in evaluating the scope of any lost future earnings, which can be substantial. The following is a sample Massachusetts jury instruction that may be given to assist the jury in determining damages associated with lost earning capacity:

Whether we are employed, are retired, or never have worked in our lives, each of us has the ability to earn money, which is called an earning capacity. The ability, the capacity to earn money, varies from individual to individual depending upon a number of factors. Such factors may include evidence of earnings before and after the injury, occupation, education, capacity, training, experience, health, habits, talents that a person has, skills that a person has, intelligence and industry. Doherty v. Ruiz, 302 Mass. 145, 147, 18 N.E.2d 542, 543 (1939). The determination of the extent of impairment of earning capacity, though involving contingencies and matters of opinion, rests largely on the common knowledge of the jury, sometimes with little aid from the evidence. Griffin v. General Motors Corp., 380 Mass. 362, 366, 403 N.E.2d 402, 405 (1980); Doherty v. Ruiz, 302 Mass. 145, 147, 18 N.E.2d 542, 543 (1939).

If someone hurts us so that we cannot exercise that ability for whatever length of time and that earning capacity is affected, then that is an area or element of damage to be considered by you. [Even when a person does not lose wages because [his/her] pay is continued by [his/her] employer as a gratuity or as compensation for disability, this person may nevertheless recover damages for impairment of earning capacity. Doherty v. Ruiz, 302 Mass. 145, 146, 18 N.E.2d 542, 548 (1939) (citing Donaghue v. Holyoke St. Ry., 246 Mass. 485, 493, 141 N.E. 278, 280-81 (1983)); Shea v. Rettie, 287 Mass. 454, 192 N.E. 94 (1934).

“[And,] a person may have an earning capacity in excess of the wages paid him or her in the job that he [or she] happens to have at the time of the injury.” Doherty v. Ruiz, 302 Mass. 145, 146, 18 N.E.2d 542, 548 (1939) (citations omitted).

Evidence of wages paid is but one factor in your determination of diminution of earning capacity. Bear in mind that it is the diminution in earning capacity of this plaintiff [himself/herself] and not some standard of normal person in [his/her] position that furnishes the test. Doherty v. Ruiz, 302 Mass. 145, 147, 18 N.E.2d 542, 544 (1939); Braithwaite v. Hall, 168 Mass. 38, 40, 46 N.E. 398, 399 (1897

Therefore, you may consider evidence of what the plaintiff did until [his/her] accident, what plaintiff’s interests were, what the plaintiff’s training and experience had been, what the plaintiff’s talents were, and generally what [he/she] was like in order to help determine [his/her] capacity to earn since the accident and into the future. You may not take into account anything that is merely possible, speculative or imaginative. Bagley v. Kimball, 268 Mass. 440, 442, 167 N.E.2d 661, 662 (1929). Rather, your award must be based on reasonable probability and can be made on the basis of your collective common knowledge. Cross v. Scharaffa, 281 Mass. 329, 332, 183 N.E. 838, 839 (1933); Copson v. New York, New Haven & Hartford R.R. Co., 171 Mass. 233, 237, 50 N.E.2d 613, 614 (1898) (“It is no objection to a finding that a computation is made without the aid of mathematical experts . . . Every jury in assessing damages in certain classes of actions is at liberty to consider questions of this kind on their own common knowledge, and without the aid of expert testimony.”)

If the plaintiff had the ability to earn money before the accident and you find there was a period of time after the accident that by reason of the injury caused by the defendant [he/she] was unable to exercise the necessary body or mental function to earn money, then that is an area which [he/she] is entitled to have you consider. If you conclude that the plaintiff will not be able to work anymore because of [his/her] injuries or [his/her] ability to earn money will be permanently diminished, because of [his/her] injuries, you may calculate a sum of money to compensate the plaintiff for that loss until the year [he/she] would not have had a capacity to earn if there had not been an accident.

If you’ve been injured in a pedestrian accident, a bicycle, motorcycle, motor vehicle, or construction site accident, or you would like to discuss a potential claim for loss of earning capacity as a result of an injury, contact attorney Joseph Curran of Curran & Desharnais, P.C. to discuss the situation and determine the next best steps, or call us directly at 781-618-3197.

Car Accidents, injury, pedestrian accidents, Personal Injury

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