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Past and future economic damages

This element of damages is a mathematical calculation based upon the amount of your earning capacity multiplied by the time you are off work, adjusted for interest rates and inflation. It also includes fringe benefits you've lost, and the cost of things you used to be able to do away from work (working around the house or "household services"), but can't do any longer. If you have a strong earnings history documented by filed tax returns, you have strong proof of your earning capacity. If you have a poor earnings history and haven't filed tax returns, you have a more difficult case for economic damages. If you have a poor earnings history, but you were making great wages at the job on which you were injured, you can claim that wage as your earning capacity, but the employer will contend that your poor earnings history is a better indicator of the amount of money you made before your were hurt. What will the fact finder believe? How credible will you be on the witness stand? (Most jurors like working people, so don't fear testifying.)

Usually, to calculate economic losses, your attorney will hire an expert economist to evaluate your case. The economist will consider your prior earnings history, your wage at injury and your prospects for raises, and he will estimate your annual earning capacity. The economist will then estimate your expected work life (how long before you would have retired). The U.S. Government has published tables based upon statistics which estimate these numbers and, generally, the retirement age is in the mid 60's. Your case may have special factors to take into account, however. Is your father in his 80's and still working every day? Were you planning to follow in his foot steps. Are you already 66 and planning to keep running a workboat for another 10 years? The economist also will evaluate your fringe benefits. Generally fringe benefits will add an additional 20-30% to your annual wage for economic loss calculations, but this number can also fluctuate widely depending on your circumstances. Finally, the economist will apply a discount factor to account for the effect of interest you could earn on any lump sum award you won in court (this reduces your damages), and to account for the effects of inflation (this increases your damages again). The discount rate is beyond the scope of this article, but if you're a budding economist, click here to read the court opinion which sets out the rules for the calculation.

 

img-twoboatsFor a quick estimate of your economic damages, just consider what you were making per year before you got hurt (after taxes), and subtract from that what you will be able to make per year (after taxes) after you heal. This is your estimated annual lost wages. Next, subtract your age from 65, this is your estimated work life. Finally, multiply your estimated annual lost wages times your estimated work life and there you have it. Keep in mind this is a rough estimate only and your economist's estimate could be significantly different. This is a ballpark number, however, which can be used to consider whether your case has the damages to warrant hiring an attorney.

WARNING: Do not start to believe that this estimated loss is what you're entitled to receive from your employer. Many other factors go into determining the value of your case, and there is no correct answer. The only true value of your case is what a court says it is, and finders of fact have been known to surprise litigants on both the high side and the low side. More importantly, if the fact finder says the incident was partially your fault, your damages will be reduced by the percentage of damages attributable to you. (If the fact finder awards $100,000.00 in damages but finds that the incident was 25% your fault, you recover $75,000.00.)

 

Past and future pain, suffering and mental anguish

This element compensates you for your physical and emotional pain. Most injuries cause a lot of pain for a little while, followed by a little pain for a long time. Everyone knows how bad a burn hurts. Orthopedic injuries are harder to convey, but most juries will have a few people who have back problems and prior broken bones and will understand that this is pain you will have to live with for the rest of your life.

Are you worried about sending the kids to college? Do you wake up at 2 a.m. wandering how you're going to make the next house payment, car payment, grocery store bill? Has your relationship with your family changed? Is your sex life different? You are entitled to compensation for these damages.

This and the following two elements of damages are difficult to estimate with any accuracy. You know how much these injuries mean to you, but no one knows how a jury or judge will react to these damages or how much they will award. The old rule of thumb for claims adjusters handling minor car wreck cases was to take the hard damages (economic damages and medical expenses ), and multiply times some number. Some cases would go for five times hard damages and some would go for two times hard damages. Your case is not a minor car wreck, however, so these estimates don't apply.

 

Most cases are settled either before or after trial, and usually the seaman receives a lump sum in exchange for a release of all future obligations, including any medical cure obligations.
Make sure you get enough money to recover your probable medical needs if you are required to sign a waiver of all future rights.

 

These emotional damages depend in large part on the general tone of the case and how the jury feels about you and the defendant. If you make a good witness, you are hurt bad, you have done all you can to deal with the injuries, the incident wasn't your fault, and the employer's witnesses do poorly on the witness stand, you can expect to receive more in emotional damages. If you are a poor worker, if you lie, if you are exaggerating your injuries, or if the incident was partially your fault, you will receive less. What will the fact finder believe in your case?

One way to think about what is reasonable is to look at it on a "per day" basis. If you think that broken thumb hurts to the tune of $30 million, think about how many days you have to live with it (assume you die at 85 and multiply the years you have left by 365). What is the value per day? If you're 35 years old, you'll estimate another 18,250 days to live. To get to $30 million, you'll have to get $1,643.84 per day. Does that thumb hurt that bad? These numbers are exaggerated, but at $16.43 per day, that 35 year old is approaching $300,000 and at $164.30 per day he/she is approaching $3 million. These numbers might not seem realistic for a sore thumb, but what if you're going to live with painful skin from whole body burns for the rest of your life?

 

Past and future loss of capacity to enjoy life

These damages are designed to compensate you for the loss of ability to do the things you used to do. Did you used to feel happiest when you and the wife and kids were out on your fishing boat or when you and your son or daughter were hunting? Did you used to love to play basketball, bowl, ride horses? Did you start your days off by lifting your little girl into your arms? If you have lost these things, the law can attempt to compensate you by awarding monetary damages.

See the discussion under Past and future pain, suffering and mental anguish above regarding the difficulties in estimating this element.

 

Past and future disfigurement

This element of damage is designed to compensate you for the embarrassment you feel because of how your injuries make you look. This element includes not only scarring, but also changes in the way you walk or carry yourself, changes in how you talk or see or hear, or any physical change which diminishes the way you feel about yourself.

 

Past and future medical expenses

img-boatsYou are entitled to recover the reasonable cost of medical care which is made necessary by the incident. The past medical care should be paid by your employer and you don't get to recover it twice, so this should not be an issue at trial. However, if the employer has disagreed that the care is necessary (yes, it happens) and has refused to pay for it, you will have to prove that the care was related to your injury. (Note that, under the cure obligation, there is no requirement of a catastrophic event. All that is required is that you become ill or injured in the service of the vessel.

Future damages are not recoverable as "cure," so to recover future medical expenses you must prove fault on the part of the employer and you must prove the cost of medical care which "based upon reasonable medical probability" will be incurred as a result of the incident. If your doctor says you "might" need surgery at some point in the future, you can't recover for the cost of it in your lawsuit. However, you may be able to wait until the surgery is needed and then make the employer pay it as cure at that time. There is no time limit on cure.

Most cases are settled either before or after trial, and usually the seaman receives a lump sum in exchange for a release of all future obligations, including any medical cure obligations. Make sure you get enough money to cover your probable medical needs if you are required to sign a waiver of all future rights.

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