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How to Recover for "Lost Earning Capacity" in Illinois

Illinois law allows a person to recover damages for "lost earning capacity" in a personal injury lawsuit. Lost earning capacity compensates the injured party for income that is reasonably certain to be lost in the future as a result of the accident or other wrongful act. 


To help you understand better how to recover for lost earning capacity in Illinois, our Illinois personal injury lawyers discuss, below:


1. The differences between damages for "lost wages" and "lost earning capacity" in Illinois


2. In order to get lost earning capacity, does my injury have to be permenant?


3. How much time can I sue for lost earning in Illinois?


4. What types of income is included in "lost earning capacity"


5. What kind of factors affect the calculation of damages?


6. What if I'm still in school or not yet working?


7. How do I prove lost earning capacity in Illinois?

1. The differences between damages for "lost wages" and "lost earning capacity" in Illinois

Illinois law permits injured victims to recover for past and future lost earning and income.


Income that you lost prior to the filing of a lawsuit or the acceptance of a settlement is referred to as "lost wages" in Illinois


"Lost earning capacity" on the other hand, refers to the loss of the plaintiff's ability to earn money in the future. It is the money the injured person would have been reasonably sure to earn if the injury had not happened.


Lost wages are easier to prove, unlike "lost future capacity" because it is more difficult to prove losses that have not yet happened. 

2. In order to get lost earning capacity, does my injury have to be permanent?

No it does not. Lost earning capacity can be awarded if the injury has not yet fully resolved by the date of a settlement or trial. 


Generally, this will occur with more serious or permanent injuries such as, traumatic brain injuries that last a very long time. 


This also happens if a case is concluded quickly where the outcome of the injuries are not certain. 

3. How much time can I sue for lost earning in Illinois?

Most personal injury cases have a two-year statute of limitations in Illinois. With some cases having a shorter limitations period. For example, personal injury claims against a government entity in Illinois usually must be filed within one year. 


The statute of limitations begins to run in Illinois as soon as the plaintiff discovers, or should have discovered, an injury. 


The plaintiff will lose their right to sue for injuries if they don't file a lawsuit within the applicable statute of limitations. 


In some serious personal injury claims, the plaintiff may not have been able to return to work prior to the end of the  limitations period. 


Lost earning capacity will allow the plaintiff to recover damages that extend beyond the end of the limitations period. 

4. What types of income is included in "lost earning capacity"

Under Illinois Law, lost earning capacity is calculating the difference between:

  • What the plaintiff could have earned had he/she not been injured, and

  • What the plaintiff will end up earning given his or her injuries.

Lost earning capacity can include the following:

  • Salary,
  • Commissions,
  • overtime pay,
  • Raises,
  • Self-employment pay
  • Bonuses,
  • 401K or profit sharing contributions, 

  • Vacation, personal or sick days, and

  • Any other lost perks or benefits (such as a car allowance or free meals).

5. What kind of factors affect the calculation of damages?

Lost earning capacity in Illinois will be determined by considering the following factors:

  • The length of time the injury or incapacity is likely to last,
  • When and if the plaintiff will return to his/her regular job,
  • The plaintiff's age,
  • The number of working years before the plaintiff is likely to retire,
  • The plaintiff's life expectancy,
  • What the plaintiff earned immediately before the accident,
  • The health of the plaintiff before the accident,
  • Whether income was performance based or fixed,
  • The terms of the plaintiff’s employment contract, if any,

  • Opportunities for promotion in the plaintiff’s field,

  • Company policies regarding promotions, raises, cost-of-living increases, and other benefits,

  • The plaintiff’s long-term employment goals and interests,

  • The plaintiff’s performance reviews and talents, and

  • Anything else that might be relevant.

6. What if I'm still in school or not yet working?

It is not a requirement that a plaintiff have a long history of employment in order to recover damages for lost earning capacity in Illinois


Example: Karen, a 20 year old education major, gets in a car accident and breaks her leg. She testifies that she intended to attend graduate school and work as an elementary school teacher. 


Karen's doctor explains that she will require several surgeries and to avoid activity that stresses her leg. Because working with children will require activity and mobility, we can reasonably conclude that Karen's future earning capacity will be impaired. 

7. How do I prove lost earning capacity in Illinois?

All future lost earnings must be reasonably certain in order to be considered in a Illinois personal injury case.


Gathering documents showing proof of past income will be helpful such as past years tax returns, pay stubs and employer's letters. 


Proving lost earning capacity can also include testimony from various people, including the following:

  • The plaintiff’s employer. The plaintiff's employer can testify about the plaintiff's past work history, work performance, and promotional opportunities. 
  • The plaintiff’s doctor. Therapists and doctors can explain how the plaintiff's before and after health and how the plaintiff's injuries have affected his or her ability to work.
  • A vocational rehabilitation expert. Expert witnesses are not always required to prove lost earning capacity. However, in some cases, a vocational rehabilitation expert witness can testify about treatment the plaintiff will need and whether and when the plaintiff will be able to return to work.
  • An expert economist. An economist can outline salary trends in the plaintiff’s field of work and show what the plaintiff could have expected to earn.
  • Friends, family and co-workers. People who know the plaintiff on a personal level can testify about what the plaintiff was like before the injury — including life goals, interests and activities.

Injured in Chicagoland? Call us for help…

If you were injured in a serious accident in Illinois, product defect, or someone else’s wrongful act, you may be entitled to compensation for lost earnings.


Call us to schedule a free consultation with one of our lawyers.


Or complete the form on this page and an experienced Illinois injury lawyer in your area will call you back at a mutually convenient time.

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