How Are Lost Wages Determined In Virginia?
Key Highlights:
- Lost wages determined in Virginia, being unable to earn money due to one’s injuries is equally difficult (really) as the injuries themselves.
- “Loss of wages versus loss of earning capacity,” “loss of earnings,” or “loss of income” mean different things.
- Whether the individual is paid on an hourly wage, a salary, is self-employed, or is a freelancer, the way he or she is paid will determine the proof of loss.
- Proof that there was an illness that links the person’s absence from work to the loss of work because of the accident must be provided.
- As per the 1 percent rule in Virginia, insufficient proof of loss of earnings means that the whole case is jeopardized.
How Are Lost Wages Determined in Virginia?
In the context of an injury claim in Virginia, the amount of lost wages Virginia refers to the amount of income one did not earn as a result of being unable to work due to the incident. Proving that one has suffered lost wages in Virginia seems to be a relatively easy task for the plaintiff, but the total amount of such losses largely depends on how the person earns their salary and whether the proof of lost wages is presented properly.
Lost wages claims in Virginia can be quite difficult. My name is Robert Tatum, and I am a founder of the law firm Tatum & Atkinson Law Firm. With over 65 years of cumulative experience in Virginia since our inception in 2006, we are a veteran-owned law firm that deals with claims of lost wages and injuries in the state of Virginia.
Three Terms People Use Interchangeably
While these terms appear interchangeable, in claims, they refer to different concepts:
- Lost wages Virginia: Refers to the particular income missed while a person was unable to work.
- Lost earning capacity: which means your capacity to earn in the future due to injuries
- Future income loss / present value: the anticipated amount of earnings that you will be losing in the future due to permanent restrictions.
While the former two deal with what you have lost, the latter deal with what you will lose in the future, where the highest numbers and toughest disputes arise in lost wages vs. lost earning capacity cases.
Income Loss Determination According to the Way You Earn
The manner in which you earn determines how you prove it, and variable hourly, salaried, self-employed, gig income require more effort than fixed salary income.
Type of Worker |
The Way the loss will be calculated |
| Hourly worker | Lost time x rate, plus any OT pay. |
| Salaried worker | Pay for lost time plus any bonuses lost. |
| Self-employed/Contractor | Accounting records, invoices, and tax returns. |
| Business owner | You missed profit, not accounting for fluctuations in business. |
| Gig worker | Platform profit information and 1099 information for comparison. |
The Proof That Makes It Happen
Paperwork is the key to a successful lost income claim. The documents needed to prove wage loss compensation include the following:
- Pay stubs, W-2s, tax returns, 1099s, and W-2 forms.
- Tax documents.
- Employer verification / payroll records, letters, and payroll documentation.
- Timesheets.
- Invoices and business documentation for the self-employed.
Medical documentation linking missed work provides the link, in the form of treatment notes and the medical practitioner’s opinion, linking the time off work with your accident injury. It includes:
- overtime
- commissions
- bonuses
- tips
which might be ignored by the insurance company. For income that changes from one month to another, the accurate average from one year or more’s worth of documentation will reveal the truth.
Where and How Experts Come In, and What the Defense Is Saying
In order to make a case for short-term recovery, employer verification/payroll records data might suffice; in the case of permanent injury, it won’t. A vocational expert/economist/accountant will determine what types of work you can perform now, while an economist or an accountant can make predictions about your future income loss/present value, bringing them down to present value.
They might claim that the condition is pre-existing condition/treatment-gap defense, or they may challenge your earnings. Your job experience and medical limitations are the key to refuting those.
What Is the Impact of Virginia’s 1 Percent Rule
According to Virginia’s pure contributory negligence / 1% rule law, a 1 percent liability means no recovery whatsoever, including for lost wages Virginia. The state does not place caps on such personal injury damages, which makes the two-year statute of limitations § 8.01-243 from the moment of the accident; the maximum period for making claims, under Va. Code § 8.01-243.
Speak to the Heavy Hitters About Your Lost Wages Case in Virginia
Lost wages Virginia resulting from another person’s carelessness are legitimate personal injury damages of actual money; however, they must be properly proved to be collectible. Tatum & Atkinson Law Firm, your trusted Virginia personal injury lawyer and Virginia injury attorney team, processes Virginia personal injury cases from our Cedar Bluff office, which serves southwest Virginia.
The Heavy Hitters are experienced in understanding how insurance companies contest lost wages Virginia claims and in structuring these claims so that they stand up under scrutiny, from salary to business income.
Contact us for a free consultation by calling us at (800) 529-0804.
Frequently Asked Questions!
How do I prove lost wages if I am self-employed?
It takes more than a pay stub, but it is possible. As there is no employer to verify your hours worked, the supporting documentation for the proof of your loss of wages would be in your own records in the form of income/expense records, invoices, receipts, client agreements, bank deposit slips, as well as your past pay stubs, W-2 forms, and tax returns.
Can I recover overtime, bonuses, tips, and commissions?
Only if you have evidence that they were an actual part of your income stream. Consistent overtime, commissions, bonuses, tips on pay stubs, commission income in the past, and bonuses that you likely earned can be claimed. The problem is that your variable pay is exactly what the insurance company wants to avoid because of its speculative nature.
How is future lost earning capacity calculated?
“Loss of earning capacity in the future” is the effect that the injury will have on your earning capability in the remaining years of your career life, rather than earnings lost from the injury itself. It normally requires a vocational expert/economist/accountant to provide expert testimony to prove it.
What if my employer will not verify my missed time?
An employer verification/payroll records letter is very convenient to use, but it is not the sole means for proving. Documentation such as payroll documentation, time cards, tax forms, pay stubs, W-2s, tax returns, 1099s may establish both average income and the number of lost workdays. A Virginia injury attorney will collect this information on your behalf to save you from involvement in the unpleasant working environment that would affect your ability to obtain wage loss compensation.
What does it cost to hire a Virginia personal injury lawyer?
There are no upfront costs. There is a contingency arrangement for these personal injury damages claims, so there are no costs unless there is a recovery, and the initial consultation comes at no cost. Contact a Virginia personal injury lawyer today. This can be very important when making a lost income claim because it is the firm, not the client, that handles all the paperwork.
