| While it is true that a few
jurisdictions require the use of actual earnings (certain auto accident
cases in Michigan, for example), most do not.
The rule in most jurisdictions is earning capacity, what the
plaintiff could have earned had the injury not occurred or can earn now
with injury. This is not synonymous with actual earnings.
Vocational and economic experts
recognize that an individual’s actual earnings sometimes best represent
earning capacity, at other times a proxy is the best measure.
A proxy is especially appropriate for younger workers and for those
with little to no work history.
The Proxy
Bibliography on this web site offers a few articles that discuss the
use of statistical averages for representing an individual’s earning
capacity. As discussed by the
vocational and economic experts authoring these articles, earnings may be
reasonably estimated by average earnings by educational level or
occupation, or through the use of specific worker characteristics defined
by the U.S. Department of Labor.
Determination of earning capacity
needs to be addressed on a case-by-case basis by an expert who considers
all relevant factors, such as age, gender, education, work history, and
work-related limitations. Automatic
use of an actual earnings figure could result in an analysis that is not a
reasonable portrayal of the plaintiff’s earning capacity, and,
therefore, is not responsive to the needs of the court. |
