Proving Lost Wages

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[Below is a transcription of the podcast]

This is Ann Margaret Perkins with Perkins Law Firm. In this podcast, I’m going to be talking about what is required to prove a claim for lost wages.

The law provides that you can’t recover lost earnings or lost wages unless you can establish what those are with “reasonable certainty”. Your loss wage claim can’t be based on guesswork or speculation. There has to be some evidence in front of the jury as to what those wages would have been. Does that evidence have to be a tax return? No, it does not. As a matter of fact, if your case goes to court, and you are cross-examined by the defense attorney, he or she cannot ask you if you filed a tax return. If suit is filed but your case doesn’t go to trial and your tax returns are requested in the phase of the case called discovery, you are not required to produce your tax returns. While those are not privileged under the law, in Georgia, the courts have said that tax returns are not required to be produced on what is called a “de minimis” showing of relevancy where other evidence can be provided that supports what you were making at the time of the injury. So typically in discovery, if we are making a lost wage claim, we provide W2’s that show our clients lost earnings or a form completed by the employer showing what the client was making at the time, the hours they worked, and when/if they returned to work.

What about the person who doesn’t have a W2 because they work for cash. A person’s testimony about what they made and what they lost is evidence of their lost earnings. Certainly, that’s not the best evidence in the world but it is sufficient for a person to testify about their earnings. You can probably understand you would be cross-examined about that if the case went into litigation or trial. In that event, it may be helpful, if you worked for instance cutting yards, to have people whose yards you cut provide testimony about how often you worked and what they paid you.

There’s no magic evidence that you are required to provide to support a lost wage claim. That said some evidence is stronger than other evidence and you would like to provide the best evidence you can without giving up too much in terms of your privacy.

That doesn’t keep insurance companies from telling you “We can’t pay loss a wage claim if you don’t provide your tax returns” or keep attorneys from asking for your income tax returns in discovery or if you go to trial? If you’re asked for tax return information by an adjuster or an attorney you could decide to provide it, but you may not want to for reasons like: you file jointly and that return is going to contain information about your spouse’s income, as well as your own and information about charitable contributions you make, the amount of your health insurance premiums, or a number of other things that are really irrelevant to a personal injury case. I understand why you might not want to provide your income tax return. So my approach is to provide information that is sufficient to allow a person to see that there is documentation of your wage loss, whatever form that is, but to avoid providing income tax returns unless my client insists.

Never believe that just because you are told by an insurance adjuster that you have to provide your income tax returns in order for them to consider your wage loss. Know what your rights are. Know what you have to provide if you’re claiming wage loss and if you don’t want to provide your tax returns, stick to your guns. I hope that you found this information helpful. If I can answer any questions you have about this or any other subject matter related to personal injury or wrongful death, I’m certainly happy to talk to you. My number is 770-728-6932. Or you can contact us by going to our website injuryispersonal.com and go to our contact page.