Schilling & Esposito April 21, 2020

Loss of income

You are entitled to compensation if your injuries prevent you from working, thereby causing you to lose income. For example, if you are a landscaper who can't work for a week because you sprained an ankle in an accident, you are entitled to compensation for that week of lost wages. You are also entitled to lost wages if you miss work because of treatment.

If the injury is serious enough and you can no longer perform the duties of your job or occupation, you can sue for "loss of future earning capacity." For example, if a construction worker who builds custom homes loses a hand in an accident, he or she can sue for loss of future wages. At Schilling & Esposito, we work with expert vocational and financial witnesses who can assist in proving the amount of economic loss that will be suffered in the future.

If the accident results in death, a family member can sue on behalf of the deceased person (decedent) for any lost income that the victim would have earned based on the work-life expectancy of the decedent. The future earnings are "discounted" to present value by reducing the total award. Example: Suppose the decedent, who was 55 years old, made $50,000 a year and his or her work-life expectancy is another 10 years. A lump-sum payout of $500,000 would be more valuable today than $50,000 over 10 years because you can invest that money. Therefore, the $500,000 would be discounted. Several very complicated formulas are used for discounting.

Cost of medical expenses/treatment

A substantial medical bill is compelling evidence of the seriousness of an injury. Cost of medical care is one of the most important elements that we examine when calculating the potential value of a claim. Obviously, the higher your medical bills, the more damages you are entitled to. In addition, the cost of future medical expenses is an important consideration as well. If you are facing years of treatment that could last a lifetime, then the number of damages you will be awarded will normally be substantially increased. Proving the amount of future medical care is an area that requires substantial personal injury experience and the use of appropriate experts.

Pain and suffering

The most personal, and often the most difficult to prove element of all damages is the pain and suffering that an injured accident victim has to endure. At Schilling & Esposito, we take our job of demonstrating this aspect of your damages very seriously. Though pain can be felt only by you, it can be evidenced by reference to the use of painkillers, the frequency and length of your treatment, the types of treatment, and the recovery time. An attorney from Schilling & Esposito will interview you, your spouse if any, and any other witnesses who were familiar with your lifestyle before the accident so that it can be measured in comparison to your lifestyle after the accident. It is important to us to make sure that each and every aspect of your lifestyle that has been compromised is made known to the jury, and proven through witness testimony and other evidence. Your loss of enjoyment of life is a compelling element of your claim that requires careful attention and experienced counsel.

Obviously, a person who undergoes several surgeries followed by excruciating physical therapy for a shattered knee will likely receive higher damages for pain and suffering than an accident victim who does not need surgery or physical therapy. Similarly, an injury that takes one year to heal will be worth more in damages than one that takes only two months. In cases where there is a permanent injury, Schilling & Esposito will likely employ an expert to testify on your behalf as to the limitations imposed by the permanent condition and the appropriate value of compensation that may be appropriate. A permanent disability will normally increase the damages awarded to you significantly. Virginia, however, prohibits recovery of damages for pain and suffering in wrongful death cases.

Mental anguish/emotional distress

Though mental anguish and emotional distress are often confused with pain and suffering, they are not the same. It can be quite normal for an accident victim to experience some sort of emotional distress in addition to physical pain. Fear, anxiety, shock, grief, mental suffering, shame and embarrassment are some of the symptoms of mental anguish that can normally result from a traumatic accident.

Example: Suppose a woman is looking out of her living room window when she sees a car crash into her car parked in her driveway, and continue into the house. The car moved back and forth against the porch several times as the driver tried to dislodge it. The terror she experiences before the collision with her house, as well as the resultant nervous conditions she experiences after the incident are called emotional distress.

States have placed limits on who can sue for emotional distress and under what circumstances. The barriers are to prevent a possible proliferation of personal injury lawsuits based solely on mental anguish. In some states, if you are not the injured victim suing for emotional distress you have to pass what is known as the "zone of danger" test. Under Virginia law, however, where conduct is merely negligent, not willful, wanton, or vindictive, and physical impact is lacking, there can be no recovery for emotional disturbance alone. However, when the claim is for emotional disturbance and physical injury resulting therefrom, there may be recovery for negligent conduct, notwithstanding the lack of physical impact, provided the injured party properly pleads and proves by clear and convincing evidence that his or her physical injury was the natural result of fright or shock proximately caused by the defendant's negligence. In other words, there may be a recovery in such a case if, but only if there is shown a clear and unbroken chain of a causal connection between the negligent act, the emotional disturbance, and the physical injury. In the example above, the woman may sue for emotional distress because she can show that her physical injuries (evidenced by nervous anxiety conditions and difficulty in breast-feeding her baby after the accident) were proximately caused by witnessing the impact of the car into her house. She could not sue if she came upon the incident after it happened, or heard about it later. Hughes v. Moore, 214 Va. 27 (1973).

Another limit some states have imposed on emotional distress lawsuits is the "physical manifestation rule," used in cases where the plaintiff is not injured. For example, you are suing for emotional distress, claiming that you have a phobia of driving after a collision earlier, and consequently cannot operate a truck for your job. You would have to show "physical injury" beyond emotional disturbance or phobia, such as headaches, post-traumatic stress disorder, or high blood pressure. Myseros v. Sissler, 239 Va. 8 (1990).

Loss of consortium

A serious accident can leave a victim in serious pain and permanently disabled. Though those types of damages are separately compensable, personal injury laws also permit injured victims or the relatives of a decedent to sue for "loss of consortium," or the loss of love and companionship as a result of an accident. A severe and disabling injury can affect a personal relationship in a variety of ways, as where many of the romantic and recreational activities that two spouses once enjoyed together may no longer be possible.

Loss of consortium would also apply if an accident left a husband or wife unable to perform chores that the spouse relied upon. Though this type of recovery usually is less than the amount of recovery awarded for pain and suffering, loss of consortium can be a major element of damages in extraordinary circumstances, as where an accident causes a victim to become paraplegic or otherwise totally disabled.

Lost opportunity

In addition to lost wages and future lost wages, you can seek compensation for any lost business opportunity resulting from an accident. It is important to be careful when presenting this type of damages to a jury. For example, not every child who suffered a facial scar in an accident "would have been a movie star." Only where there is ample proof of a lost opportunity should it be presented, otherwise, speculative claims may be rejected by a jury and hurt your credibility for recovery on other, more concrete claims.