A few weeks ago I had an arbitration hearing involving a motor vehicle accident. Both of my plaintiff/clients were employed as casino dealers. One took 3 days off work immediately following the accident.
Both missed some full days of work periodically, and both used early outs because their neck or back pain was aggravated by their fixed posture while dealing. Both clients were treated from July into November in the year of the accident. The majority of the client’s wage loss claims involved loss of income related to early outs. Generally, dealers make about 3 times more in tips than their hourly salaries.
In most casinos, if an employee leaves work for pain related to an accident they get a point. The accumulation of 12 points results in termination.
Casino Early Outs
Most casino employees have the option, when they begin a shift, to sign up for an early-out. If the casino isn’t busy the employee who signs up for early-out can leave early without any points, but they loose their hourly salary and their tips for the hours that they miss.
The majority of the arbitration hearing dealt with testimony from the Plaintiff’s involving their wage loss.
The arbitrator did award some loss of income to both Plaintiffs, but did not award the full amount. The arbitrator’s decision expressed concerned about the lack of doctor’s excuses for time missed from work. The arbitrator found this to be problematic. Plaintiffs were not required to produce a doctor’s excuse unless they missed 4 days of work. Neither Plaintiff missed more than 4 days in a row. Both Plaintiffs testified that all of their time off work between July and November was because of accident related neck and back pain.
The defense presented no evidence to counter Plaintiffs’ wage loss claims, except for the argument that Plaintiffs used early outs on occasion before the accident.
Plaintiffs’ medical records were of little help documenting Plaintiffs’ problems at work and contained no doctors excuses.
Proving Pain and Suffering
I would like to discuss the proof issues involved with Plaintiff’s not being compensated for the full amount of their wage loss.
I could find no Nevada cases that involve the elements of a wage loss claim. Therefore, wage loss, like any other item of damages, must be proved by a “preponderance of evidence”.
The Nevada Pattern Jury Instructions involving the preponderance of evidence standard and wage loss are as follows:
“Whenever in these instructions I state that the burden, or the burden of proof, rests upon a certain party to prove a certain allegation made by him, the meaning of such an instruction is this: That unless the truth of the allegation is proved by a preponderance of the evidence, you shall find the same to be not true.
The term “preponderance of the evidence” means such evidence as, when weighed with that opposed to it, has more convincing force, and from which it appears that the greater probability of truth lies therein.”
Source: Eighth Judicial District Court Civil Jury Instructions. Nev. J.I. 3.00 – Burden of Proof; Preponderance Of The Evidence
“In determining the amount of losses, if any, suffered by the Plaintiff as a proximate/legal result of the accident in question, you will take into consideration the nature, extent and duration of the injuries (or damages) you believe from the evidence Plaintiff has sustained, and you will decide upon a sum of money sufficient to reasonably and fairly compensate Plaintiff for the following items:”
Source: Eighth Judicial District Civil Jury Instructions, NEV. J.I. 10.00 – Personal Injury and Property Damage; Introductory.
“Plaintiff’s loss of earnings from the date of the accident to the present and the loss of earnings which you believe the Plaintiff is reasonably certain to experience in the future as a result of the accident.”
Source: Eighth Judicial District Court Civil Jury Instruction NEV. J.I. 10.03 – Personal Injury; Loss of Earnings.
“Whether any of these elements of damage have been proven by the evidence is for you to determine. Neither sympathy nor speculation is a proper basis for determining damages. However, absolute certainty as to the damages is not required. It is only required that Plaintiff prove each item of damage by a preponderance of the evidence.“
Source: Eighth Judicial District Court Civil Jury Instructions NEV. J.I. 10.19 – Personal Injury and Property Damage; Closing Instruction.
California Pattern Jury Instructions give us the following requirements of proof of past lost income:
To recover damages for past lost earnings, [name of plaintiff] must prove the amount of [insert one or more of the following: income/earnings/salary/wages] that [he/she] has lost to date.
Source: CACI 39036 citing “We know of no rule of law that requires that a plaintiff establish the amount of his actual earnings at the time of the injury in order to obtain recovery for loss of wages although, obviously, the amount of such earnings would be helpful to the injury in particular situations.” (Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 656 [151 Cal.Rptr. 399].)
The BAJI instruction involving past wage loss provide us with the following elements of proof of loss of earnings:
“The reasonable value of working time lost to date.
In determining this amount, you should consider evidence of plaintiff’s earnings and earning capacity, how [he] [she] ordinarily occupied [himself/herself], and find what was reasonably certain to have been earned in the time lost if there had been no injury.
[One’s ability to work may have a monetary value even though one is not employed by another.]
[Also, the reasonable value of serviced performed by another in doing things for the plaintiff which, except for the injury, plaintiff would ordinarily have performed.]
[These are items of economic damage.]”
Source: BAJI 14.11
None of this law on past wage loss requires a doctors excuse as a prerequisite to the recovery of past wage loss.
How can Physicians Assist?
So, what can physicians do to assist a personal injury patient with verification of past wage loss, so that they can meet the preponderance of evidence standard of proof?
- Since a doctor’s excuse can be an element of proof for past wage loss, the treating physician should always give the patient a doctors excuse to verify any absence from work, whether the employer requires it or not. The patient should give the doctors excuse to their personnel department, payroll department, or human relations department, so that it becomes a part of their payroll/personnel records.
- The physician should document any absence from work in his patient’s records by referencing how the patient’s condition prevented them from working and/or how the patient’s condition would be aggravated by the tasks associated with the patients work.
- Previously, I have written about how “duties under duress” that appear in a patient’s medical records can increase the value of a claim for purposes of computer evaluation utilized by insurance companies. Therefore, the physician should inquire on each visit about how the patient’s condition is affected by work. Are you experiencing pain while working? Have you missed any days/hours of work because of your injuries and associated pain since your last visit? If so, this information should be documented in the medical records. If interim full days are missed the physician should document this in his records. If partial days are taken off work, or if the patient has to leave work early because of their injuries, this should also be documented in the medical records, and the physician should comment on his opinion as to whether this missed time from work was reasonable and consistent with the patients injuries. Obviously, this documentation may take a few minutes to do, but it is extremely valuable in verifying and taking the mystery out proof of past wage loss.
- The patient should communicate the difficulties he’s experiencing at work to the physician, even if the physician doesn’t ask about it. When the physician asks the question, (“How have you been doing since your last visit?”), the patient should communicate information concerning work duress to the physician. Documentation of wage loss and duress experienced at work is a two way street. The patient should communicate wage loss and work distress information to the physician, and the physician should inquire of the patient about how his work is affecting his injury.
- Insurance companies don’t like to pay for past wage loss and have been successful in defending wage loss claims because of lack of documentation in medical records. Obviously, if I had wage loss and work distress information in my arbitration clients’ medical records the arbitrator would have been more inclined to award them their entire wage loss claim.
For these reasons wage loss claims are easy to defend. Work distress documentation is also important in documenting pain and suffering. If the physical requirements of a patient’s work affects their accident-related pain and suffering, then documentation of work distress also documents the patient’s pain and suffering.
This is a common sense plan for the verification and documentation of past wage loss. To my knowledge nobody has taken the time to articulate this simple approach to support proof of past wage loss. This article will be disseminated to physicians who deal with personal injury claims. Hopefully, this article will result in the beginning of an improved plan for the documentation of past wage loss by physicians who treat victims of accidents.