“Lost Earning Capacity” Damages in Colorado Injury Cases

Colorado’s lost earning capacity damages are a:

• financial award given to an injured person
• because he or she can no longer earn the same amount they did before
• due to the injuries he or she has suffered
• as the result of another person’s negligence.

Damages for Future Loss

Lost earning capacity damages are for a future loss. This is different than “lost wages” damages, which are damages designed to compensate the injured party for wages lost before the effective date of the settlement agreement or a jury verdict.

Determining the Amount of Damages

When considering how much to award in damages, the jury or the court will consider certain factors, which are listed in more detail below. These factors help the judge or jury figure out how much money is appropriate to compensate the victim for his or her loss.

Proving Your Case in Colorado

Proving lost earning capacity in Colorado is more difficult than lost wages as it is more complex and subjective. However, with the right witnesses and proof, an injured person can make his or her case. Witness testimony can help prove your case. Witnesses include experts and laypersons:

• Doctors,
• Employers,
• Economist,
• Vocational Rehabilitation Expert, or
• Plaintiff

Below, our Colorado personal injury attorneys address frequently asked questions about lost earning capacity damages in personal injury lawsuits and the injuries you may have suffered:

• 1. What are lost earning capacity damages in Colorado?
• 2. What is the difference between “lost wages” and “lost earning capacity” damages in Colorado?
• 3. What losses are included in this type of damages?
• 4. How does the court or jury determine how much in damages to award to the injured party?
• 5. How do I prove in Colorado the amount of damages I have suffered due to my injuries?
  • 5.1 Physician Testimony
  • 5.2 Employer Testimony
  • 5.3 Expert Economist Testimony
  • 5.4 Vocational Economist Testimony
  • 5.5 Plaintiff’s Testimony

1. What are lost earning capacity damages in Colorado?

Lost earning capacity damages are a:

• financial award given to an injured person
• because he or she can no longer earn the same amount they did before
• due to the injuries he or she has suffered
• as the result of another person’s negligence.¹

These damages are designed to compensate the victim of an accident due to the inability to earn future wages or the same level of future wages that could have been earned absent the accident.

2. What is the difference between “lost wages” and “lost earning capacity” damages in Colorado?

Lost earning capacity damages are for a future loss. This is different than “lost wages” damages, which are designed to compensate the injured party for wages lost before the effective date of the settlement agreement or a jury verdict.

Lost wages are:

• amounts an injured party would have earned
• in the past
• if not for the defendant’s wrongful acts.²

3. What losses are included in this type of damages?

Lost earning capacity can include, but is not limited to the following:

• salary;
• overtime pay;
• bonuses;
• commissions;
• raises;
• self-employment income;
• vacation days, sick days, and personal days;
• retirement contributions (for example, 401K or pension contributions); or
• other perks which are a part of a person’s employment.³

Additional types of pay, compensation, or other work benefits may be included depending on the plaintiff’s unique circumstances. An experienced attorney can identify all of these for you, and make the case on your behalf.

4. How does the court or jury determine how much in damages to award to the injured party?

When considering how much to award in damages, the judge or jury will consider certain factors, such as:

• how long the injuries or incapacity will last;
• any diminished ability to earn as a result of the accident;
• the injured party’s age;
• the injured party’s life expectancy;
• past earnings;
• likelihood of receiving promotions, raises, or another advancement;
• plaintiff’s goals before the accident; and
• performance reviews.⁴

Any other relevant factors may be considered. This list is not meant to include every factor that can be considered by the court or jury.

5. How do I prove in Colorado the amount of damages I have suffered due to my injuries?

Proving lost earning capacity is a crucial part of the personal injury case. With the help of certain witnesses, such as those described below, the injured party can prove his or her case.

5.1 Physician Testimony

The plaintiff’s doctors can testify about the person’s health before and after the accident as well as how that affects his or her ability to work. Doctor testimony is incredibly helpful but requires an experienced attorney to make sure the right evidence is presented.

5.2 Employer Testimony

The employer can testify about a person’s work history, performance, job opportunities, and the potential for advancement. The employer may also testify about why the employee can no longer work in the same job as before the accident.

5.3 Expert Economist Testimony

An economist can establish salary trends and other information showing the likely earning capacity of a person of the future. Calculating the actual amount a person loses due to an injury is complex work, so an expert economist is an essential part of “doing the math” as well as presenting it to the jury in a way that makes sense.

5.4 Vocational Economist Testimony

An expert in job rehabilitation can make accurate assessments of a person’s current and future abilities to perform the work he or she performed before the accident. These experts can point to the specific medical condition and how that hinders future work performance.

5.5 Plaintiff’s Testimony

The testimony of the injured person is invaluable in proving the case. Who better than the injured person knows of the limitations he or she now suffers as the result of another person’s wrongdoing?

Call us for help…

For questions about lost earning capacity damages in personal injury cases or to confidentially discuss your case with one of our skilled Colorado personal injury attorneys, do not hesitate to contact us. (For cases in California or Nevada, please see our pages on lost earning capacity in California personal injury cases and lost earning capacity in Nevada personal injury cases.)

We represent clients in and around Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, and several nearby cities.

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