Loss of Earning Capacity

All permanent injuries suffered by a Plaintiff will have some impact on that Plaintiff’s future ability to secure employment.

Whenever an individual is permanently injured he should recover for this potential loss to his future earnings.

This recovery is not dependent on the Plaintiff’s loss of current income or wages with his current employer.

In Jackson v. Illinois Central Gulf Railroad Company, 18 Ill. App. 3rd 680, 309 N.E.2d 680 (1st District 1974), the First District allowed instructions and recovery for loss of future earnings even though the Plaintiff worked for the same employer at trial as he had on the date of his injury and even though the Plaintiff’s salary was one hundred fifty percent higher at the time of trial.

In Jackson the Plaintiff has been a janitor and had three fingers amputated.  At the time of the trial the Plaintiff had become a security police officer, and the First District said: “Suffice it to say that considering Plaintiff’s life expectancy and extent and permanent nature of his injury and the effect of the injury on his future ability to secure laboring employment the Jury could well have concluded that the Plaintiff’s capacity to earn money in the future would be severely hampered.” [Jackson at 688]

In Parnham v. Carl W. Linder Company, 36 Ill. App. 2nd 224, 183 N.E.2nd 744 (1962) the Appellate Court held that the trial court had properly given an instruction on future earnings loss and had properly admitted life expectancy tables even though the Plaintiff was making the same or higher income at the time of trial and was performing the same work that he had performed at the time of his injury.  The Plaintiff in the Parnham case lost his eyesight in his left eye.

In Izzo v. Zera, 57 Ill. App. 2d 263, 205 N.E.2d 644 (1965) the Plaintiff held the same position with his employer at trial as he had at the time of injury and his salary increased at the time of the trial.  The Appellate Court approved of an instruction and recovery of future earnings loss.

In Izzo the Plaintiff was a high school music teacher and a professional musician who had suffered a fractured jaw.

In Seyferlich v. Maxwell, 28 Ill. App. 2d 469, 171 N.E.2d 806 (1st District 1961) the First District allowed a recovery for future earnings loss where the Plaintiff was apparently earning the same money at the time of the trial as she had earned at the time of her injury.  In Seyferlich the Plaintiff was an interior decorator who suffered a back injury.  After her injury she became self employed.  The First District held that the question of the Plaintiff’s loss of earnings and diminution of earning capacity was clearly a question for the jury.

The Court said: “The jury may have determined that the Plaintiff’s earning capacity was impaired by the accident and that but for the accident she might have earned considerably more.” [Seyferlich at 808.]

In the recent case of Harris v. Day, 115 Ill. App. 3d 762, 71 Ill. Dec. 547, 451 N.E.2d 262 (1983) the Appellate Court stated that “the record contains evidence that Plaintiff’s injury was permanent and evidence that such injury would reduce Plaintiff’s employment options and/or result in a loss of time from future employment.  The Plaintiff himself testified that his injury diminished his capacity to work and the general rule is that the appearance of the Plaintiff on the witness stand, his testimony as to the nature of his injury and their duration is sufficient to take the question of impaired earning capacity to the jury.”

In the case of Doering v. Janssen, 76 Ill. App. 3d 62, 31 Ill. Dec. 519, 394 N.E.2d 721 (1979) a personnel consulting expert was allowed to testify concerning the future employability of the Plaintiff.  The expert testified that based on the medical testimony (the Plaintiff suffered a brain injury) the Plaintiff’s injury would have an impact on the Plaintiff’s employability with eight major employers in the area.  The Appellate Court held that this testimony was not conjecture and overruled older Illinois cases to the contrary. [Doerong at 521]

In Buckler v. Sinclair Refining Company, 68 Ill. App. 2d 283, 216 N.E. 2d 14 (1966) the Plaintiff’s income or salary actually increased at the time of the trial from what it was at the time of the injury.  The Plaintiff amended his complaint abandoning his claim for loss of future income and alleged “loss of earning capacity” rather than loss of income.

The Appellate Court held that “impairment of earning capacity is a proper element of damage to be considered by the trier of fact and that recovery of damages for loss of earning capacity is not merely a recovery for wages lost.” [Buckler at 20]

The Plaintiff’s increase in income was excluded by the Court and the Appellate Court commented “an increase in salary in a corporate business where the employee is also the manager and majority shareholder has no essential relationship to earning capacity.” [Buckler at 20]

In Robinson v. Greeley and Hansen, 114 Ill. App. 3d 720, 70 Ill Dec. 376, 449 N.E. 2d 250 (1983) the Appellate Court again approved of the trial court excluding the increased income of the Plaintifff at trial when the Plaintiff’s income was the result of his corporate earnings.

The Court held that when the company earnings are the result of the investment of significant capital as well as the use of labor of others that the earnings are not an accurate indicator of the earnings potential of the Plaintiff. [Robinson at 381]

The Robinson Court held that the impairment of earning capacity is a proper element of damages but that the recovery for earning capacity losses must be limited to losses that are reasonably certain to occur.  The Court held that: “Generally the measure of damages for impairment of earning capacity is the difference between the amount which Plaintiff was capable of earning before his injuries and that which he is capable of earning thereafter…damages should be estimated on the injured person’s ability to earn money rather than what he actually earned before the injury and the difference in the actual earnings of Plaintiff before and after the injury does not constitute the measure.” [Robinson at 380]

The Robinson court also said that “the fact that Plaintiff’s earnings after his injury are at the same or greater rate than before is not a criterion as to earning power since earning capacity may be materially impaired although the employer continues to pay the old rate.” [Robinson at 380]

In the Robinson case the injury was a brain injury and a vocational rehabilitation counselor testified.  He testified that prior to the accident the Plaintiff was capable of earning fifty thousand dollars per year.  This conclusion was based upon an evaluation of the Plaintiff’s skills and duties in the construction industry.  The counselor testified that the Plaintiff’s earning capacity after the injury was only ten thousand dollars per year.  The expert considered the Plaintiff’s employability in the wrecking industry in which the Plaintiff was currently employed and his employability in clerical occupations.  The Court concluded then that the Plaintiff’s current earning capacity was determined by his current position, duties and skills. [Robinson at 281]

The impairment of earning capacity is not a speculative area.  The recovery for the impairment of earning capacity is limited to the loss that is reasonably certain to occur.  In Christou vs. Arlington Park – Washington Park Race Tracks Corporation, 104 Ill. App. 3d 257, 60 Ill. Dec. 21, 432 N.E. 2d 920 (1st District 1982) the Plaintiff was unemployed at the time of the injury.  He had previously worked as a bus boy and he testified that he was in training for a bartenders job but that he had ambitions one day to own a restaurant.  The Plaintiff never owned a restaurant and clearly had no capacity to earn income as a restaurant owner.  The trial court allowed testimony of the average weekly income of restaurant owners.

The Appellate Court held that the testimony concerning possible income to an average restaurant owner based on the Plaintiff’s ambitions one day to be a restaurant owner ws remote and speculative.  The Court said that the ambition of the Plaintiff had never been materialized and was not an item of the Plaintiff’s earning capacity.  The Court did allow testimony to the Plaintiff’s training as a bartender and the weekly salary he would have earned had the Plaintiff finished the training. [Christou at 24]

The I.P.I Instructions which apply to future earnings losses are I.P.I. 30.07 and I.P.I. 30.08.  These Instructions state that: “The present cash value of the earnings reasonably certain to be lost in the future.”

In closing argument cousel would want to argue that Plaintiff’s earning capacity impairment would actually cause the Plaintiff to lose earnings in the future.

In Redmond v. Hupperitz, 71 Ill. App. 2d 254, 217 N.E. 2d 85 (1966), the Appellate Court considered a brain injury to a sixteen year old girl where there was no evidence that the injuries would impair the Plaintiff’s ability to obtain work or to be gainfully employed. The medical opinion indicated a brain injury with permanent loss of the sense of smell.  The Plaintiff had participated in the usual school activities and was fully and gainfully employed at the time of trial.  The Court held: “An instruction on the future loss of earnings where evidence is adduced of some permanent injury to a minor child is proper.” [Redmond page 88]

In Stewart v. DuPlessis, 42 Ill. App. 2d 192, 191 N.E. 2d 622 (1st District 1963) the Appellate Court held that when a minor suffers a permanent injury (loss of vision in one eye) an instruction on the loss of future earnings is proper.

In Huff v. Condell Memorial Hospital, 4 Ill. App. 3d 352, 280 N.E. 2d 495, (1972) the Appellate Court held that where the plaintiff was nineteen years old and a minor at the time of the hospitalization, an inference of future loss of earnings from the nature of her permanent injury is permitted even where there is no evidence of Plaintiff’s lost wages or any foundation for future earning losses. [Huff at 498]

In Bernesak v. Catholic Bishop of Chicago, 87 Ill. App. 3d 681, 42 Ill. Dec. 672, 409 N.E. 2d 287, (1st District 1980) the First District affirmed a two hundred thousand dollar injury verdict involving a permanent injury to a child on a school playground.  The defense successfully convinced the trial court not to give a future earnings instruction because the Plaintiff’s hip injury would not preclude her from holding most jobs and was unlike the other child cases referred to above.  The trial court agreed with the Defendant but the First District held that this is a question for the jury to consider and that the instruction should definitely have been given.

The First District reversed the order denying the Plaintiff’s motion for a partial new trial and remanded the case for a new trial solely on the issue of the amount of money to be added to the two hundred thousand dollar verdict based on the Plaintiff’s loss of income and present cash value of income reasonably certain to be lost in the future. [Bernesak at 680]

In Hartseil v. Calligan, 40 Ill. App. 3d 1067, 353 N.E. 2d 10 (1976) the Appellate Court confirmed the rule of law that a future loss of earnings was to be inferred from the nature of an injury to a minor child.  In addition to confirming this rule of law Hartseil allowed the plaintiff’s physician to testify concerning possible occupations for the Plaintiff.  The physician testified that the back injury to the Plaintiff would be a permanent condition and would possibly preclude his engaging in some occupations.

The doctor said that in his opinion these injuries would restrict the Plaintiff from being employed by “any company who in their pre-employment evaluation obtains an x-ray of the lumbar spine because this deformity will be visible and will exclude him from employment in a company which does that.” [Hartseil at 12] https://www.marketmymarket.com/legal-marketing/

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