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Future Loss of Earning Capacity Awarded Despite Injured Claimant Continuing to Work

If an injured plaintiff returns to work after a motor vehicle accident and continues to work despite having injuries that will, at some point in the future, restrict or even prevent him/her from working entirely, is there a claim for loss of future earning capacity?

The courts have held in many cases that the answer is “yes” if certain factors are proven despite ICBC rigorously arguing otherwise. Often if an injured claimant is stoic and hardworking, ICBC will argue that the injured claimant has no claim for future loss of earning capacity. The premise behind ICBC’s common argument is that the injured claimant is clearly fine because they are working while completely ignoring his/her struggles, difficulties and the enormous amount of effort put in on a daily basis to continue working. This argument is consistently made by ICBC despite strong medical evidence from the experts who are of the view that the injured claimant should not be working and that at some point in the future he/she will no longer be capable of continuing because of the pain and limitations from their motor vehicle accident injuries.

In order to successfully argue a claim for loss of earning capacity in these circumstances, it must be proven that there is a “real and substantial possibility” of a future event leading to an income loss. The courts have established that in order to answer this question, the following four (4) factors are considered:

  • Has the injured claimant been rendered less capable overall from earning income from all types of employment;
  • Is the injured claimant less marketable or attractive as an employee to potential employers;
  • Has the injured claimant lost the ability to take advantage of all job opportunities which otherwise might have been open to him/her had he/she not been injured; and
  • Is the plaintiff is less valuable to himself/herself as a person capable of earning income in a competitive labour market.

Miller v. Lawlor 2012 BCSC 387 involved a 24 year-old injured claimant who suffered chronic soft tissue injuries to his shoulder, neck and back in a motor vehicle accident. The medical experts were of the opinion that his injuries were chronic and permanent, that his injuries prevented him from being able to complete some (but not all) of his job duties as a sprinkler fitter and that he was no longer competitively employable. ICBC argued there was no loss because the injured claimant had continued working despite his injuries and that this would continue indefinitely while ignoring a number of important facts. First, the injured claimant worked for his father’s company who had made a number of accommodations for him because of his injuries. Second, he worked in considerable pain which impacted his ability to perform all of his job duties. Third, while the injured claimant had been able to work as of the date of trial, it was unlikely he would be able to continue to do so for several more years for the rest of his career.

In awarding the injured claimant damages for loss of earning capacity, the trial judge found that the four (4) factors had been proven through the expert evidence. At paragraph 138, the trial judge stated:

[138] As in Pallos, the plaintiff continues in the same work he had prior to the accident. It is unknown how long that will last. He might realize his goal of taking over his father’s business if he can learn the business end of the operation. This might require him to reduce his number of hours on the job in order to understand and appreciate this aspect of the sprinkler fitting business. He might be able to secure employment that will not require as much over-the-shoulder, off-the-ground work. He might retrain for other “labouring” opportunities. He could follow in the footsteps of Mr. Noon and become a union representative. As in the past, he could be out of the work force for a considerable period of time depending upon what might happen in the construction industry in the future. However, with his strong work ethic I have little doubt he will continue to work in some capacity. Finally, given that Dr. Adrian concluded the plaintiff is “probably” permanently partially disabled, there is some prospect his shoulder and back pain might decrease to the point where he could manage all the heavy duties of a sprinkler fitter.

[139] Considering all of the evidence, I find the plaintiff also stands a higher risk of loss of future earning capacity than did the plaintiffs in the cases canvassed by Garson J. in Phoutharath, at para. 57. I conclude therefore that a fair award for the plaintiff would be the equivalent of three years’ annual income for a journeyman sprinkler-pipefitter on Vancouver Island.

Tags: Future Loss of Income, ICBC loss of Wages, loss of earning capacity, Loss of Income

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"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

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