The option to work from home, once a rarity, has become widely adopted in the aftermath of the COVID-19 pandemic. The arrangement often provides greater flexibility and convenience for workers, and many businesses accommodate their employees by allowing them to work remotely for at least part of the week.

The increased availability of remote work has also impacted personal injury claims. Remote work arrangements can lead to defense arguments for a reduction in settlements or verdicts on the basis that injured people can reduce their lost wage claim, a compensable damage, if they can work from home.

Even with the option to work from home, you’ll still want to recover an amount that adequately compensates you for your injuries. A skilled attorney will be able to craft a strong case on your behalf.

How lost wages and diminished earning capacity are calculated

When you are injured in an accident, you may be out of work for some time while recovering. Recovery in personal injury cases account for this by compensating someone for lost wages or the money you would have earned had you not been injured.

Lost wages are calculated based on your hourly wage (or annual salary) and the number of days of work you missed. This calculation can also take other factors into account, such as lost overtime, commissions, tips, bonuses, and retirement fund contributions; missed promotions; sick days or paid time off used during your recovery; and even certain work-related perks such as stipends. There are also challenges AND benefits to being self-employed and sustaining an injury through no fault of your own. As with any claim for lost wages, documentation is key.

Lost wages differ from diminished earning capacity, which awards damages based on the claim that your injury has limited your future ability to earn money. For example, accidents that result in the loss of a limb or a traumatic brain injury may make it impossible to return to the job you held before you were injured.

To calculate lost wages or diminished earning capacity, attorneys will collect information on your earnings, such as your W-2 form and pay stubs. Your employer can also provide testimony on your earnings and missed work, including details on any perks or additional income you lost after your injury. A self-employed person can often testify for themselves about earnings lost due to injury, without the need to bring in economists and vocational rehabilitation experts.

In addition, a seasoned personal injury trial attorney will collect medical evidence showing that your condition prevented you or currently prevents you from working. This evidence can include a note from your doctor explaining how much time is necessary for your treatment and recovery.

Diminished earning capacity can be determined with the help of forensic economists. These experts consider factors like age, education, work experience, and skills to determine how the injury has inhibited someone from advancing one’s career and how many more years they would have worked. They then determine a sum an injured person would have likely earned during a career had they not been injured.

Your duty to find work

An injured person does have the duty to mitigate his/her damages in a personal injury case, and this may come up in claims involving lost wages or diminished earning capacity. Plaintiffs must take reasonable steps to minimize the impact an injury has on their lives, and their ability to resume their regular activities, including work.

If a plaintiff is able to return to work after their injury, and fails to do so, a defendant may argue that a plaintiff acted unreasonably if they took actions such as failing to show up for a job interview, applying for unsuitable jobs, or refusing offers of employment at a salary less than what they were making before their injury.

A seasoned personal injury trial attorney will counsel someone injured on what should be done, depending on the circumstances, to make and prove a lost wage or diminished earning capacity claim.

The impact of remote work

When you’re injured in an accident but still have the ability to work remotely, you may be able to return to your previous role and minimize the time when out of work. An employer may also be able to adjust your work duties so you can work remotely, or you may be able to find other opportunities in your field that allow for remote work.

The possibility of remote work can lead a defendant to argue for a reduction in lost wages and to make the claim that you have not suffered diminished earning capacity. They may also argue that you failed to mitigate damages by not pursuing remote work or that your skills or abilities give you the opportunity to find remote work.

However, this type of debate was also common before the rise of remote work. Plaintiffs are often able to return to work in some capacity, but not at the level they were at before their injury. There are several circumstances where you can still argue that you have suffered lost wages and diminished earning capacity, even with remote work as an option. These include:

• Your earnings are reduced as a result of your work duties being adjusted to support remote work
• Your injuries prevent you from returning to full-time employment and only allow you to work remotely part-time
• Psychological or emotional trauma caused by your injury is inhibiting your ability to work
• Remote work is allowing you to earn income but limiting your potential for future career advancement

Getting injured while working remotely

Remote work has also raised questions about whether employees are eligible for workers’ compensation if they are injured while working from home.

Since workers’ compensation is no-fault insurance and an employer has no control over an employee’s home environment, it can be awarded for numerous different types of injuries that occur during the course of a workday. These can include injuries like carpal tunnel from frequent computer use or breaking an ankle while tripping over a loose rug.

It is generally accepted that employees can receive workers’ compensation for injuries that occur outside the workplace. However, they must demonstrate that they were doing a work- related activity. Even something like tripping and falling while walking from your home office to the kitchen to get a cup of coffee can be eligible for workers’ compensation; by contrast, your claim won’t be successful if you hurt yourself while mowing the lawn on your lunch break.

Workers’ compensation claims for injuries that occur while working from home can sometimes be more challenging than those that occur in the workplace. For example, an injury that occurs at home is less likely to be corroborated by witnesses. Insurers may also be suspicious of injuries that occur outside the typical 9-5 workday, even though employees may opt to put in evening hours when working remotely.

Let’s review your case

The attorneys at Anderson Trial Lawyers are here to assist you with your claim, including issues involving personal injuries and working remotely. Call 860.886.8845 or contact us online to set up a free consultation.

A visit to the playground offers children a chance for a fun day outside. Unfortunately, these visits sometimes end with a trip to the emergency room.

Studies have shown that more than 200,000 children in the United States go to the hospital each year with injuries sustained on the playground, such as concussions or severe lacerations. Broken bones resulting from a fall are the most common injury, and the majority of those injured are ages nine and under.

If your child was injured in a playground accident, you may be able to file a personal injury claim to receive compensation for their medical bills and other costs. These claims can be very complex, and a skilled attorney can provide helpful assistance. In this blog, we’ll explore some of the legal issues that may arise from a playground injury.

Premises liability

Playgrounds can be found at numerous different places, including schools, parks, day care centers, campgrounds, churches, and private homes. No matter who owns the playground, they have a responsibility to keep it safe. A claim against someone in control of a playground must demonstrate that the defendant failed to make sure the playground was reasonably safe to use. An injury may be caused, or worsened, by the following conditions on the premises:

Poor maintenance

The playground owner has a duty to regularly inspect it for any potential safety issues, such as broken equipment or unsafe surfaces. They also have a responsibility to repair these problems in a reasonable amount of time. If the property owner fails to take these steps, they can be held responsible.

Lack of hazard warnings

When a playground hazard is present, the playground owner must take steps to keep visitors away from it until it can be addressed. If they don’t take reasonable steps to warn others, such as putting up barriers or signs, they can be held liable for injuries resulting from the hazard.

Inadequate safety and security measures

The playground owner must take steps to ensure that the premises are safe and secure, especially if there are known issues at the site. Precautionary steps might include putting up fencing to prevent children from walking into a nearby street or installing lights if the playground can be used in the evening.

Products liability

You may also be able to file a claim against those responsible for designing, manufacturing, or constructing the playground. A products liability claim can be filed if one of the following scenarios occurred: 

The playground is poorly designed or constructed

Playgrounds must be designed to endure various weather conditions and heavy use. They must also include adequate safety features and be appropriately designed for a specific age range. If there was a design flaw that made the playground inherently unsafe, it can contribute to injuries. If a defective product causes injury, a product seller may be responsible for damages.

Even if a playground is properly designed, errors or flaws in the production process can create unsafe conditions that contribute to injuries. If a manufacturer becomes aware of such a defect, they must issue a timely recall notice and provide proper notification to make the playground owner aware of any potential hazards. Manufacturers can also be held liable if they use substandard materials or other practices that compromise the safety of the playground.

Errors in the construction or installation of a playground can also contribute to injuries. These might include structural instability, loose components, and the exposure of sharp fasteners like screws and bolts.

Regulatory non-compliance

Playgrounds must comply with safety standards and regulations governing playgrounds. These standards can include federal, state, or local codes. Any parties that don’t abide by these standards can be held liable if this non-compliance is a substantial factor in causing an injury.

Failure to warn

Playground equipment usually includes labels warning visitors about certain inherent risks in using the playground. If the manufacturer fails to provide adequate information about potential safety risks, they can be held liable for an injury.

Negligent supervision

Parents have a duty of care to supervise their children at playgrounds, look out for potential hazards, and take reasonable steps to prevent injuries. This duty also extends to adults who supervise children “in loco parentis,” or in place of the parents, such as teachers and day care staff.

The playground owner can be held liable if a staffer did not properly supervise children using the playground. Negligent supervision may include not addressing a safety hazard, failing to stop dangerous behavior, or being absent or distracted when the injury occurs. It can also include the failure of the playground owner to hire qualified staff, maintain adequate staffing levels, provide proper training, or establish proper policies and procedures.

Negligent supervision can sometimes be challenging to prove, as the plaintiff must show that the defendant failed to act reasonably and did not provide an adequate standard of care. This factor can also be less applicable in claims involving older children, who are generally expected to exercise better judgment and not require close supervision.

Other considerations

Depending on the circumstances of the accident, several other issues can come into play when a child is injured on a playground. These might include:

Governmental immunity

Publicly owned playgrounds, including those at schools or parks, have greater protection from legal claims due to government immunity. This protection aims to prevent legal actions against government entities. However, there are certain exceptions to this immunity, which must be investigated to defeat a governmental immunity defense.

Trespassing

There may be clear signs indicating that a playground is not used at certain times, such as after sunset or outside of school hours. If an injury occurred outside of these hours, the defendant may argue that the plaintiff was trespassing and therefore not owed the same duty of care owed to users during normal hours. However, property owners are still responsible for keeping the property in good repair and owe a greater duty of care to children (see below).

Attractive nuisance precautions

Property owners must take precautions to prevent foreseeable harm children may suffer due to property features that may attract children. For example, the owner of a private playground has a duty of care to put up fencing or other deterrents to prevent its unsupervised use.

Shared fault

A defendant may argue that you share some of the fault for your child’s injury. For example, if a child is injured due to unsafe equipment but you were not supervising them at the time they were hurt, the defendant can argue that you were partially to blame. This can result in a reduction in the award received in a settlement or verdict.

Let’s review your case

Personal injury claims involving playground injuries can be complex. If your child has been injured in a playground accident, the attorneys at Anderson Trial Lawyers will sit down with you to discuss the circumstances of the accident and how you might proceed with a claim, and conduct the needed investigation to pursue a claim. Contact us online or call 860.886.8845 to set up a free consultation.