Advertising Disclosure Email Disclosure

A loss of earning capacity claim must be established by the evidence with reasonable certainty. The plaintiff’s opinion alone as to his or her loss of earning capacity is insufficient to carry such a burden.

October 1, 2017
Rasinski v. McCoy, 42 Fla. L. Weekly D1711

When bringing a loss of earning capacity claim, the burden is on the plaintiff to establish, with reasonable certainty, that the capacity to labor has been diminished and to provide a monetary standard to which a jury can measure future loss. While it is not necessary for the plaintiff to have suffered a permanent injury to recover for loss of earning capacity, it is a significant factor. Other factors include the plaintiff’s age, health, habits, occupation, surroundings, and earnings before and after the injury.

The Fifth District Court of Appeals, in determining the trial court’s decision to deny the defendant’s motion for remittitur or new trial was in plain error, suggested that the plaintiff’s testimony regarding the possibility he could not return to work as a plumber if he lost his job was speculative and irrelevant. The court stated that this type of testimony fails to demonstrate that the plaintiff is either completely disabled from further gainful employment or unable to work to the same age he would otherwise had been able to but for the accident. This decision is consistent with prior appellate decisions that support the proposition that a plaintiff’s subjective opinion testimony as to his inability to work in the future or to work at reduced wages as a result of the accident alone is insufficient to support a loss of earning capacity claim.

As a result, a claims professional should focus on the objective evidence that supports the claim, such as a treating doctor’s prescription restricting certain types of work in the future or an employer’s statement that the plaintiff could no longer perform his or her job duties as required, resulting in a demotion or pay cut, when evaluating a loss of earning capacity claim.

Case Law Alerts, 4th Quarter, October 2017 Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2017 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

Affiliated Attorney

Practice Areas

Before you send this email please note:

You are attempting to send email, through a link on our website, to an attorney of Marshall Dennehey Warner Coleman & Goggin or an employee in our firm. Please note that your email may not be treated as confidential and does not create an attorney-client relationship. You should not rely upon the transmission of an email through this website if you are seeking to enter into such a relationship. Until such time as we have agreed to represent you, no information in your email will be treated as confidential. Please contact us directly by telephone at 1.800.220.3308 if it is your intent to seek legal counsel with our firm or convey confidential information.

If it is still your intent to send this email, knowing that it may not be treated as confidential, you may accept our terms of agreement by pressing "OK". If you choose not to accept these terms of agreement you may navigate away from this page by pressing "Cancel."