Dirk Derrick (00:00):
Welcome to The Legal Truth, the podcast created to provide you general legal information about South Carolina law, lawyers and the legal process, and hopefully prevent you from being surprised by the unexpected. We will answer many of the questions I've been asked during the past 35 years about South Carolina personal injury claims and workers' compensation claims. We'll also discuss existing laws and proposed changes in the law and how they affect you. My name is Dirk Derrick, the founder of the Derrick Law Firm, and I'm your host.
Voiceover (00:35):
Please see required Ethics Disclaimers in show notes.
Pearl Carey (00:42):
Hi everyone, I'm Pearl Carey, and welcome back to the The Legal Truth Podcast. Today, we will be discussing the truth about recovering lost wages in a personal injury claim. I'm here with my co-host, Dirk J. Derrick. And Dirk, why don't you tell us a little bit about what it means to recover lost wages in a personal injury claim?
Dirk Derrick (01:00):
Well, lost wages are one of the elements that you can recover under South Carolina law. So if you're injured because of the negligence of someone else, you can recover lost wages or how they've damaged you financially because you've been unable to work.
Pearl Carey (01:13):
Absolutely. And so how might you prove that you've had lost wages?
Dirk Derrick (01:17):
Well, lost wages come in the form of wages, bonuses, overtime, and any kind of compensation. So you can prove it mostly with statements from your employer who says John Doe was unable to work from this date in this state in that time period. He or she would've made blank dollars and prove you lost wages that way. It gets a little bit more complicated when you have waitresses and people who make tips and whatever they claim on those tips is usually what your limit is as far as what you can recover. Some waiters and waitresses may not claim everything they make, but they're kind of stuck with that. If they have a lost wage claim, it's hard to go in and say, "I made more than that and just didn't claim it," to the federal government. That's not a good look. Kind of stuck with what you've claimed and what's on paper and what's official.
Pearl Carey (02:09):
That makes sense. And so what if somebody's self-employed?
Dirk Derrick (02:11):
Self-employment is a little different. You're looking at lost profits. Again, you're stuck with what's on paper. You can look at tax returns where you're looking at lost profits or a replacement value if you had to hire somebody extra to make the same profit without you. The general understanding is you're trying to show the financial loss, and so that's going to be in the form of lost profits, lost business, or if you need somebody to take your place in the company how to hire that person, you can also claim that additional expense.
Pearl Carey (02:44):
Yeah, that makes sense. And so what if you can still work but not in the same capacity as you used to?
Dirk Derrick (02:49):
The reduced earning capacity is an element. Actually, the law in South Carolina says that loss of earning capacity is an element. So let's say you were doing a heavy duty lifting job, get hurt permanent injury to your back. You can no longer do the heavy lifting job that paid $20 an hour and now you're limited to jobs making $15 an hour, so you have a lost earning capacity of $5 an hour. That can be a damage for as long as that exists, whether it's temporary or whether it's permanent. That case is usually proven by tests to prove what you can do, whether you can lift heavy, medium light duty to determine, it's called a functional capacity examination to find out what you can do. And the same thing if it's a mental injury or a brain injury or whatever.
(03:41):
You're looking at the damages and now what your capacity is physically or mentally and how that has to reduce your ability to earn a living. We usually have to use medical providers and experts to get the diagnosis, prognosis, and the limitations, and then we'll use a vocational expert to look at your new status and what you can do now to give an opinion as to what the earning capacity is for a person who can do that versus the person who could do what you could do before the incident. And that vocational expert can opine the degree of your loss of earning capacity.
Pearl Carey (04:23):
And so how can you recover for missed future wages?
Dirk Derrick (04:26):
Same thing. You have to prove that based upon a reasonable degree of medical certainty, these lost wages in the future are going to exist. You're looking at the diagnosis from the doctor, prognosis from the doctor that your maximum medical improvement, you're not going to get any better, and then you have an assessment of where you are then. And if the doctor says that the condition you're in now is the condition you're going to be in for the rest of your life or for a certain period of time and testifies to that based upon a reasonable degree of medical certainty, then you can get the vocational expert to testify as to the reduction of your earning capacity for that length of time.
Pearl Carey (05:05):
So what are some issues that people might face when trying to collect lost wages?
Dirk Derrick (05:10):
The number one problem people have is when they try to self-diagnose that they can't work. You have to have a medical provider or an expert who is willing to testify or put down in a statement that you need to be out of work. You can't just stay out of work and say, "I didn't feel like going to work." That's not enough. You got to have somebody saying you can't work. And a lot of people early on kind of get in trouble there. They go to the ER, they're hurting. They don't get a statement from the ER doctor. They lay out three days, and if they have a smaller claim and they want the lost wages, we either have to go back to the ER doctor and say he or she unable to work during that period of time to corroborate the fact that the client stayed home. So you need proof from the doctor that you're physically or mentally incapable of working in order to make the claim.
Pearl Carey (05:59):
Right.
Dirk Derrick (06:00):
The second issue that comes up is just waiting for someone to reach maximum medical improvement to determine the lifetime effect this injury's going to have on them. People get in bad situations who are hurt badly, and I think some people don't understand this, but insurance companies don't pay you along, and along and along while you're out of work. So if you have an injury, it knocks you out of work for months or years, if you don't have short-term and long-term disability or savings, you can get in a very bad situation quickly.
Pearl Carey (06:36):
Right.
Dirk Derrick (06:37):
Insurance companies for defendants, the personal injury claims don't have to pay you once a month because you've missed that month of pay. So people get-
Pearl Carey (06:44):
You have to wait.
Dirk Derrick (06:44):
... in bad situations. If I had to give anyone advice, is go find you some kind of short-term disability policy, a long-term disability policy that can cover you while you're healing. Because if you have an injury, we need you to get to a state of actual medical improvement for a doctor to say, "Okay, here goes where they are. Here goes to their condition, here goes to their ability to work and then get a vocational expert involved," do all those calculations to determine which your loss of earning capacity is for the future. So it's not something that can be decided real quickly and collected early on from the insurance company. It's going to be a while. They pay one time. They pay one time once we get all the facts and all the evidence to make them pay their full policy limits in order to make a claim. So you need to kind of protect yourself from an employment standpoint. People get in bad situations.
Pearl Carey (07:33):
Absolutely. I can definitely see how that could happen. So Dirk, is there anything else that you'd like to add in terms of recovering lost wages?
Dirk Derrick (07:40):
No. You have lost wages from an employee. You have lost profits from an employer. If you have any questions about that, you can call and we'll talk to you for no charge to explain if you have a specific situation where you want to have a question answered about whether or not you're eligible to recover lost wages or lost profits. But the biggest thing, just understand the doctor's got to hold you out, and if it's bad injuries, it's going to hold you out for a long time. You get in bad situations if you don't take it on yourself to go get some short-term and long-term disability.
Pearl Carey (08:10):
Yeah, absolutely. Well, thank you for stressing the importance of that. Thank you to all of our listeners today for tuning into this episode of the The Legal Truth Podcast. And again, if you're looking for some more information, feel free to give us a call or you can visit our website at dereklawfirm.com. Thank you so much.
Voiceover (08:32):
Thank you for joining us on The Legal Truth Podcast. If you have questions that you would like answered on a future episode, please send them to [email protected]. If you would like to speak to us directly, call us at 843-248-7486. If you find the podcast valuable, please leave us a five star review and share The Legal Truth with your neighbor, friend, or family who is seeking reliable information about a South Carolina personal injury or workers' compensation claim. Dirk J. Derrick of the Derrick Law firm Injury Lawyers is responsible for the production of this podcast located at 901 North Main Street, Conway, South Carolina. Derrick Law Firm Injury Lawyers has included the information on this podcast as a service to the general public. Use of this podcast and any related materials does not in any manner constitute an attorney-client relationship between Derrick Law Firm Injury Lawyers and the user.
(09:24):
While the information on this podcast is about legal issues, it is not intended as legal advice and should not be used as a substitute for competent legal advice from a licensed professional attorney In your particular state. Anyone seeking specific legal advice or assistance should retain an attorney. Any prior results mentioned, do not guarantee a similar outcome. The content reflects the personal views and opinions of the participants in the podcast and are not intended as endorsements of any views or products. This podcast could contain inaccuracies. The information contained in this podcast does not constitute legal advice and is not guaranteed to be correct, complete, or up to date as laws continue to change. In this podcast, you'll hear information about focus groups. Please note that not all of the firm's cases are presented to a focus group. Additionally, when speaking about juries or jurors in relation to a focus group, we are speaking of focus group participants and not actual trial juries or jurors.