Lost Wages (Past And Future)

It is recommended that you advise your client at the initial interview to keep a log of the dates and hours missed from work due the injuries and medical visits. Unfortunately, visits to the attorneys office will not be reimbursed. A simple wage loss form can be provided the client, with a cover letter from you to the employer. It is important that the client understand the need to have his physician write disability slips for the time during which the client is unable to work. The liability insurer will want to see that the treating doctor took the client out of work on the days that the client is requesting reimbursement. The insurer will also want to see a signed wage loss form from the employer confirming the hours, rate of pay and days out of work. It is now very common for claims representatives to make telephone calls to the employer to verify the time out of work.

At the time you write your settlement demand letter, you must also determine from the treating physician if he anticipates the client will continue to miss more time from work. This could be due to future medical care or result from an inability to return to his former employment due to permanent injuries resulting in restrictions on work activities. These opinions must be secured in writing and discussed with the client.

You must then calculate the amount of the future wage loss. If the future losses do not involve a loss of employment or change which causes a decrease in earnings, you should be able to calculate the future wage loss yourself. If the injury caused a change of employment or a demotion with loss of earnings and benefits, you may need to retain a vocational rehabilitation expert to compute the future losses.

Practice Pointer: It is not uncommon for the treating doctors to be misinformed about the client's employment and the nature of any associated physical activity. Be sure you know from your client the full nature and extent of the employment activities and how the injury will affect his work day.

If the wage loss is substantial, the claims adjusters may ask for the client's tax returns. This is an issue for many self-employed clients whose tax returns tend to under report income. Conventional wisdom has it that jurors will not award for a wage claim which is not supported by tax returns. Clients should be advised that it will be difficult to recover lost income which has not been reported to the IRS.

Illegal immigrants are legally entitled to make a personal injury claim and their legality or immigration status is irrelevant. If filing suit, you may attempt to make a wage claim for past wages even if the client is an undocumented alien. See: Peterson v Neme, 222 Va. 477, 281 S.E. 2nd 869 (1981). In Peterson, a 1981 decision, there was evidence the injured housekeeper was illegal, but such status was declared both irrelevant and unduly prejudicial. Peterson noted the penalties for hiring an undocumented alien were civil and further held that excluding the past wage claim would not serve as a deterrent. But in 2002, the Unites States Supreme Court decided Hoffman Plastic Compounds, Inc.v. National Labor Relations Board, 535 U.S. 137 at 148-149; 122 S. Ct. 1275; 152 L. Ed. 2d 271 (March 27, 2002). The ruling held that the NLRB cannot award back pay to an undocumented alien because it is impossible for an undocumented alien to obtain employment in the United States without either the worker or employer directly contravening explicit congressional policies. The U.S. Supreme Court held that either the undocumented alien tenders fraudulent identification, which subverts the cornerstone of Congress' enforcement mechanism, or the employer knowingly hires the undocumented alien in direct contradiction of its statutory obligations. In other words, when an undocumented alien is hired, someone is breaking the law, and Congress has expressly made it criminally punishable for an alien to obtain employment with false documents. See: 18 USC § 1546. The Virginia Supreme Court has not yet ruled on how Hoffman and the Immigration Act of 1986 may affect its ruling in Peterson.

Practice Pointer: The Immigration Reform and Control Act of 1986 has expressly made it a crime for an alien to obtain employment with false documents. Given that the Peterson decision predates this federal law, and also specifically deferred ruling on the propriety of a future wage loss by an undocumented alien, it is advisable to drop any claim for future wage losses when filing suit. You will also want to file a motion in limine regarding a past wage claim to ensure the trial court will exclude evidence of the plaintiff's status as an undocumented alien.

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