Future loss of earning capacity is a measure of settlement money meant to compensate someone injured in an automobile accident that because of the injury, cannot hope to earn the money he or she could have if not for the injury.

Wisconsin Civil Jury Instruction 1762 asks what sum of money will fairly and reasonably compensate the injured person for future loss of earning capacity. The loss of future earning capacity as a result of the injuries one sustained in the car accident, is the difference between what I will reasonably be able to earn in the future in view of the injuries sustained and what I would have been able to earn had I not been injured.

If you are a self-employed business owner, at the time of the accident, you should, in determining your loss of future earning capacity, consider the character and size of the business, the capital and labor employed in the business, and the extent and quality of your services to the business and the profits of the business.

While the injured person has the burden of establishing loss of future earning capacity, the evidence relating to this item need not be as exact or precise as evidence needed to support other items of damage like medical bills, or past lost wages.  The reason for this rule is that the concept of loss of future earning capacity involves factors which, by their very nature, do not admit of any precise or fixed rule. The jury is not required in determining the loss of future earning capacity to base its answer on evidence which is exact or precise but rather upon evidence which, under all of the circumstances of the case, reasonably supports its determination of damages.

The jury is not permitted to speculate in evaluating lost capacity to earn. Schulz v. St. Mary’s Hosp., 81 Wis. 2d 638 (1978). Loss of future earning capacity is acceptable with proof of facts or inferences leading to “reasonable probabilities.” Reinke v. Woltjen, 32 Wis. 2d 653 (1966).

In claims for future loss of earning capacity, there is the longstanding requirement of proof of a permanent injury. See, e.g., Weisenberg v. City of Appleton, 26 Wis. 56, 60 (1870) and proof of the possibility of a continuing disability is not enough to support an award for reduced earning capacity. Kincannon v. National Indem. Co., 5 Wis. 2d 231 (1958). There is a question whether expert testimony is required to prove the permanent injury and its relationship to the future loss of earnings, subject for another blog post.

Attorneys for the people, McCormick Law Office in Milwaukee, Wisconsin, believe in better.