ICBC Car Accident Claims & Wage Loss: A Case Study
If you have been in a car accident in BC, have been injured and are unable to work you may be entitled to wage loss compensation.
There are two types of categories of wage loss that we will discuss.
Past Wage Loss
Past wage loss is more properly seen as a combination of actual lost earnings and damages for past loss of earning capacity (refer to: Smith v. Knudsen, 2004 BCCA 613; Rowe v. Bobell Express Ltd., 2005 BCCA 141, Falati v. Smith, 2010 BCSC 4650) rather than a mere tabulation of actual lost wages.
While there may be actual missed work shifts or contracts and thus lost wages, this may not be the only factor to consider when dealing with an ICBC accident claim. Instead, a person injured in a car accident may have a reduced capacity for finding, keeping or performing work, so that they have lost the opportunity to work and earn, at least at the same level prior to the accident. Such a loss defies precise calculation.
In a recent case which car accident lawyer, Matt Cleary of Klein Lawyers settled, the plaintiff was only 17 years old at the time she suffered severe injuries in a motor vehicle accident. At the time of the accident, she was not working. However, prior to that she had worked part-time for her father in the construction field and did not have trouble with any physical work. Having only completed Grade 10 her better-paying employment options had all been positions involving physical labour.
In the years since the accident, she worked in various retail sales clerk positions, which all paid about minimum wage. She had opportunities from time to time to do higher-paying, physical labour jobs, even temporarily, but could not, given her back pain and other symptoms. As a result, she had to pass up such opportunities, as she was simply incapable of working these jobs, because of her accident-related injuries. At one point, she attempted working in such a physically demanding position, but the aggravation of her pain was simply too much. Thus, she had lost earning opportunities because her only capital asset, as far as earning power, that of youthful physical capacity and endurance, had been badly diminished.
Based on those facts and legal principles, this young woman was able to obtain substantial compensation from ICBC for “wage loss” since the accident, despite not actually missing any work shifts or losing any actual income.
Loss of Future Earning Capacity
In the case of future income loss, what is actually being compensated is not precisely the actual loss of income in the future (because the future has yet to occur), but rather the loss or diminishment of an injured individual’s capacity to work and earn income, which has value as a capital asset.
Once it has been established that the plaintiff has a real and substantial possibility of loss of income because of the car accident injuries, there are two approaches which may be taken by a court in assessing the value of a future loss of earning capacity.
In the first approach, referred to as the “earnings” or “real possibility” approach, an assessment is made based in part on the plaintiff’s past and/or current earnings and current employment and earning situation. Although still compensating for the loss or diminishment of a capital asset, there is an element of estimated calculation of past earnings into a future which is uncertain but nevertheless changed for the worse by the a car accident victim’s injuries.
The second approach is known as the “capital asset approach”, and involves a more holistic consideration of the impact of the injury in question on the plaintiff’s earning capacity. This, in a sense, can be conceived of as a multifaceted assessment of the value of the individual as a person capable of earning income, a capital asset, and the diminishment of that asset. This approach involves an unavoidable element of arbitrariness or “crystal ball gazing”, as the future is ultimately unknowable. Some of the questions which are asked in making such an assessment include whether:
- The plaintiff has been rendered less capable overall from earning income from all types of employment;
- The plaintiff is less marketable or attractive as an employee to potential employers;
- The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him or her, had he or she not been injured; and
- The plaintiff is less valuable to himself or herself as a person capable of earning income in a competitive labour market.’
In the case mentioned above, the young plaintiff, despite continuing to work full time, in low-paying, relatively non-physical jobs, obtained a large settlement for the loss of future earning capacity, based on a “capital asset” approach.
The team of car accident lawyers at Klein Lawyers fully evaluates each ICBC accident claim and works with professional resources such as occupational therapists, actuaries, and accountants to help assess the real value of past wage loss and future earning capacity.