Lost wage benefits under current No-Fault regulations are designed to fairly compensate the eligible injured party. Insurance Law Section 5102 (a) (2) provides that an individual who makes a claim under the no-fault law must be compensated for “[l]oss of earnings from work which the person would have performed had he [or she] not been injured.”
In reality, the insurance carriers defending the lost earnings claim face an uneven playing field, skewed in favor of the claimant.
The Department of Financial Services has issued an advisory opinion as early as 2003 indicating when an injured person can demonstrate that they could reasonably expect to earn overtime wages of a projected amount, but for being injured, those lost wages would be reimbursable under No-Fault. The department has also opined when an injured insured is unable to return to work due to injuries arising from an automobile accident and, the insured’s employer hires another person to fill the insured’s vacant position during the insured’s period of disability, so that the insured cannot immediately resume her employment when she is medically cleared to return to work, the insured may recover lost wages for the period after she is medically cleared but before she actually resumes work. Furthermore, § 65-3.16(b)(3) of N.Y. Comp. Codes R. & Regs. tit. 11 (Regulation 68-C) states that “[l]oss of earnings from work shall not necessarily be limited to the applicant’s actual level of earnings at the time of the accident, but may also include demonstrated future earnings reasonably projected.” Thus, under the no-fault scheme, injured persons may recover certain future earnings in addition to earnings from employment at the time of the accident.
Defending these claims requires time intensive and exhaustive presentations to the American Arbitration Association. Two decisions are attached from the American Arbitration Association which demonstrate the commitment required to defend a lost wage claim. Bruce Burgos v. State Farm Mutual Automobile Insurance Company (AAA No.: 41-16-1048-0611) Amount in dispute – $40,000 and Sonnia Martinez v State Farm Mutual Automobile Insurance Company (AAA Case: 41-15-1021-8871) Amount in dispute – $66,690. A forensic accounting examination and the sworn opinion of an economist is essential on a speculative claim for past or future benefits by a self-employed claimant. Verification in the form of tax records frequently contradict the testimony of the claimant on earnings. Case law is also critical, to argue to the arbitrator the precedents on the interpretation of the regulations.
“Claims for lost earnings must be ascertainable with a reasonable degree of certainty and may not be based on conjecture.” (Glaser v County of Orange, 54 AD3d 997, 998 [2d Dept. 2008], Schiller v New York City Tr. Auth., 300 AD2d 296, 296-97 [2d Dept. 2002]; Davis v City of New York, 264 AD2d 379 [2d Dept. 1999].) It is the claimant’s burden to establish damages for past [and future] lost earnings with reasonable certainty, such as by submitting tax returns or other relevant documentation. See State Farm Mutual Auto. Ins. Co. v. Stack 55 A.D.3d 594, 869 N.Y.S. 2d. 536, 2008 NY Slip Op 07651 (NY App. Div., 2nd Dept., October 07, 2008).