After an injury there is frequently a period of time when injuries prevent a victim of negligence from being able to go to work. Most of the time this is fairly straight forward. You have a broken leg and you need surgery and have a no weight bearing restriction and an out of work note from your surgeon for a fixed period of time. At the end of that time you return to work. During that time off work you received no pay and you missed $5,000 of pay. You have a right to receive from the wrongdoer that wage loss. However, statutory protections may change what you are owed.
Just as in the medical claim section for automobile injuries, there is an optional first party wage loss benefit which you may have purchased with your automobile insurance coverage. Medical coverage of at least $5,000.00 is mandatory. Wage loss is required to be available, but can be waived.
Who waives wage loss coverage? Usually, retired people who earn no income is a good example. Why pay for coverage that you do not need. On the other hand, if you wortk part time and earn let's say $12,000 per year or do consulting work and earn the same or more you may wish to consider having wage loss coverage and not waiving it. Even if you have no wage loss coverage on your auto policy you have a right to make a claim for these losses against the wrongdoer. The experienced lawyers at our firm know what needs to be done to make such a claim.
All to often you are reading this page after an injury and trying to decide where to get help. You can't buy coverage that applies to an automobile injury retroactively. To find out if you have wage loss coverage you need to look at your declaration page on your automobile policy. It is under First Party Benefits and usually titled "Wage Loss" or "Loss Income Protection." Next to this coverage is usually a per month and a total amount.
So let's assume you earn $1,000.00 per week or about $4,300.00 per month and you are out of work for 2 months. The total wage loss is $8,600.00, but your auto carrier has to pay you regardless of whom is at fault the sum of 80% of your gross lost wages up to the maximum you purchased.
For example, if your policy states: $1,000.00/$5,000.00, it refers to a maximum amount of $1,000.00 per month wage loss benefit and $5,000.00 maximum benefit for however many months you are injured. There is also a mandatory waiting period of 5 days compensation before your first party wage benefits are eligible.
In the above example you would receive $2,000.00 from your own first party benefit auto carrier. Because the amount of your pay each month well exceeds the benfit, but it is limited to a two month time frame.
However, you may have purchased let's say, $2,500.00/$50,000.00 in coverage. Then you would receive $5,000.00 for the two months wage loss because 80% of the $4,300.00 in wage loss each month is still more than the coverage.
In both instances you cannot sue for the wage loss from the negligent party which has been paid by your auto first party benefit, but you can sue for the shortfall which is not covered. So in the first example you lost $8,600.00 in wages, but only received $2,000.00 for a outstanding wage loss of $6,600.00 which will be a claim against the negligent party who caused your injury and wage loss.
You may also have purchased a single combined limit for wage loss and medical expense on a higher end policy for large income earners. There are greater protections and different time limitations. Whatever your coverage be sure to check with us to know your rights.
Another thing that should be looked at is whether or not there were alternative methods of travel. The law is particularly difficult on people who are making claims who had the ability to travel along a safe path but chose the dangerous path, i.e. the pedestrian who decides to leave his or her car and walk across the icy area when there are less dangerous paths, because it is more convenient is going to have a difficult time proving case. If, however, the entire parking lot has icy patches all through it, one cannot be faulted for choosing a path that appeared to be safe but, in fact, was not.
The first thing to do is to report the slip and fall to someone in a position of authority at the location where the fall occurred. It is important to document by way of complaint to the homeowner, landowner, or business owner your injury as soon as practical. Obviously, if you are taken away by ambulance you may not be able to do that. The documentation of being transported by ambulance is usually sufficient to justify why such a complaint was not made promptly. If on the other hand you are walking into a large department store and you slip and fall on moisture that is near the entranceway and none of the counter people or store personnel come to your assistance, it is in your best interest to look at your surrounding circumstances, note whatever you can note, take a picture with your cellphone camera if you have the presence of mind to use one and go and report the fall and bring someone back to show the foreign substance or reason why you fell. It is also important for you to try to document the existence of any injuries as early as possible.
If you have any questions concerning any injury you may have had by way of a slip, trip or fall, please do not hesitate to contact any of the attorneys at Murphy & Dengler.
The general rule is that if there is wage loss or loss of earning capacity that is caused by a slip and fall or inability to work due to a medical malpractice disability, then the person or entity responsible must pay the wage loss. There is no statutory wage loss payment benefits, except in malpractice cases there is only a claim for wages which are not reimbursed by a private disability carrier. The collateral source rule which allows you to recover from the third party who is responsible as well as from a disability carrier is abolished in medical malpractice claims.
This should be the easiest to figure out, but frequently there are wrinkles in the system that requires the assistance of an attorney. If you are injured on the job and you can't work there is a seven day waiting period. If you are disabled more than 7 days, then the compensation benefits are paid retroactive to the first day. The rate of pay is usually two thirds of the injured earner's average weekly wage. However, there are variations on that compensation rate number if you make more than a certain amount or less than a certain amount. In the year 2019 the average weekly wage for Pennsylvanians as determined by the Pennsylvania Department of Labor has been determined to be $1,573.50 meaning that unless you earn more than that amount you will receive 2/3 of that amount as the maximum compensation rate of $1,049.00 per week. If your average weekly wage is $960.00 then the compensation rate is 2/3 of that amount or $640.00 per week. The legislature has set up a scale for people who earn less to make the amounts fair to workers with lower paying jobs. People who earn less than one-half of the statewide average weekly wage but more than 37% of the average weekly wage is reflected in a weekly compensation rate of $524.50 if the employee's average weekly wage is between $786.75 and $582.78. If it is less than $582.77 per week the injured employee will receive 90 percent of the employee's average weekly wage if his/her average weekly wage is $582.77 or less.
In addition the rate you are paid depends on the year you were injured. The website lists the rates for the last 6 years:
Please be aware that you cannot sue your employer or co-workers for negligence for an injury on the job, but there might be a claim against a responsible third party who caused an injury. For example the delivery driver who is rear ended by a speeding teenager who is on his/her phone may sue the driver and his/her auto insurer for negligence while still receiving workers' compensation benefits. Another example is a nurse in a hospital who falls on ice in the hospital parking lot and breaks her hip. It is discovered that the parking lot was not treated or de-iced by the snow removal service who was supposed to clean and salt the lot 6 hours before the fall. The nurse has a claim against the negligent snow removal company. See the Workers' Compensation section of this web site. Click here to learn more about Workers' Compensation claims.
In all forms of claims for wage loss there is the possibility that your injury is not as straightforward as time off from a job. Take for example the self employed person or the commission sales worker who misses two months of work but earns the same amount of money as the year before. The negligent wrongdoer and even your own first party benefit carrier may take the position there is no wage loss. But what about the fact that your business, or you were having a terrific year and year over year you were going to make 20% more than the year before, but were not able to do so because of your injury. You are entitled to that loss as a loss of earning capacity with the proper documentation.
Let's say in December your employer announces a $1.00 per hour wage increase effective January 2. Unfortunately you get hurt by someone's negligence on December 29. The wage loss going forward is roughly $40.00 per week higher because of the expected raise not the pay on the day of the injury. The earning capacity is the guaranteed higher wage.
Let's say a car salesman is injured at the end of October and does not return until the first week of January. Let's assume the average weekly wage over the first 10 months of the current year is $850.00 per week or $36,550. But the year before the injured party earned $700 per week average or an annual total of $36,400. Can a wrongdoer argue there is no wage loss? The answer is NO. In fact such a salesperson might show while the year before earnings were $36,400, the months of November and December were the busiest and that of the total earned, $14,500 (almost 40%) of total income from the year before was realized in the last two busy months. Documentation further shows that the car dealership sold more cars in the current year in November and December than the year before in the time the injured party was out and that the injured commission sales person would have made an additional 40% on top of his year to date sales or an additional $24,360.00 in earnings. This is a lot more than just using the per week to date average difference of $7,650.00.
Another example of earning capacity is based on reasonable future expectations. Does a college student who is likely to earn six figures as a business major and who is made disabled by an injury stuck with the average earnings loss of the average earnings of all students? Maybe, maybe not. Let's assume the person is a history major and is going to community college and about to transfer to a local college with a decent reputation. However, the average history major earn after college a salary of $45,000. Let's assume another student was accepted to Princeton University in the physics department and is planning on studying astrophysics in graduate school. His brother and uncle are both employed by Space-X in their space launch program and he hopes to work with them one day. The average physicist earns after a 4 year degree $65,000 without an advanced degree, mostly as teachers. Can this student not argue my brother a third year Ph.D physicist earns $125,000.00 per year and my uncle who got my older brother his job as a 15 year Ph.D physicist earns $175,000.00 per year. The future earning capacity comparison is more likely the brother and uncle trajectory than the physics teacher salary.
How about a physician who is finishing his/her third year of residency in internal medicine and is earning $63,000 per year. He/she has been accepted into a 3 year fellowship program for cardiology which will pay him/her $68,000 per year. After completing the fellowship the average Cardiologist in the area where he/she was likely to practice earns on average $375,000.00 per year. Unfortunately he/she is injured near the end of the residency and loses the ability to speak because of a vocal chord injury. Instead the physician and her medical institution after a period of recovery decide that he/she can really only practice medicine realistically without the ability to speak to patients as a pathologist in a hospital setting. A board certified pathologist earns on average $225,000.00 per year. The likely future earning capacity wage loss is $175,000.00 per year for a 30 + year career.
Pennsylvania recognizes this in its law. The loss of opportunity or economic horizons caused by an injury has long been accepted as a basis for future wage loss claims.