Lost Earning Capacity II: Military Plaintiffs

Part I of this article discussed how lost earning capacity works as a general matter. This second part explores the unique challenges of making a lost-earning capacity argument with an injured plaintiff who is in active military service.

This article is from Richard Duquette’s podcast Bicycling and the Law, episode ‘Lost Earning Capacity, Part 2: Military Plaintiffs‘ recorded on April 26, 2017.

Part one (published in Issue #157) discussed the basics of lost earning capacity law. We explained how it falls into the category of general damages, because although it represents real economic loss, it is forward looking and somewhat speculative by nature. This means that forecasting these losses is simpler than looking back to past medical bills and missed days of work.

We further explained how proving lost earning capacity often requires the assistance of both a medical and/or occupational expert to describe the way a plaintiff’s injuries will affect their career, and an expert economist to forecast earning capacity with and without the injury.

In the context of the military, while the same law applies, proving lost earning capacity not only takes on a greater importance to the total value of the plaintiff’s case, but also requires a different type of economic analysis. It’s a more important part of a military plaintiff’s case because their special damages are often limited by the nature of their career and benefits.

Discounted Medical Expenses

One reason why lost earning capacity can be of greater importance to a service member’s case is that they have fewer out of pocket medical expenses than a civilian plaintiff. Because active duty military members receive much of their care at no out of pocket expense to themselves, very often there will be little to claim in the way of actual medical expenses. Often, the only out of pocket medical expenses a military member may claim as compensable damages involve those extraordinary expenses an injured plaintiff voluntarily incurs when they feel the treatment they are receiving on base is overly conservative.

Limited Duty Means No Actual Lost Wage

Another reason why lost earning capacity can be a bigger part of a military plaintiff’s case is because the likelihood of actual lost wages is less likely. Military members are permitted limited duty and medical leave in order to recover from injuries. This minimizes the actual lost wages that a civilian employee might be exposed to. However, it does not eliminate the case for lost future earning capacity.

The two most obvious ways a military member may suffer lost future earning capacity come in the form of the threat of medical separation and the possibility of missing out on future promotions.

Medical Seperation

The first and most obvious way that lost future earning capacity becomes an issue in the case of an injured military plaintiff is in medical separation. We won’t elaborate on the full chapter of federal law dealing with the subject (see 10 U.S. Code §§1200 et seq, for further reading). Summarized very briefly, if a medical board determines that a soldier, marine, or sailor medically unfit for duty, they will be separated with a compensation package based on their rank, experience, and level of disability.

However, this still represents a loss. In these cases, a plaintiff’s lost future earning capacity would be measured by projecting their anticipated career length and the rank they were expected to achieve. This is done both by the plaintiff’s testimony and the testimony of peers, superior officers, and sometimes military policy and personnel experts.

After this is established, lost active duty pay over that time is calculated using the military pay scales. Projected annual retirement pay is then calculated based on these figures and a formula prescribed by another federal statute. This is then projected over the plaintiff’s expected life span by using the life expectancy tables. After this, the sum of lost earning capacity is reduced by subtracting: (1) the actual severance package given, (2) the actual retirement pay issued, and (3) the reasonable amount the plaintiff would be expected to make in the civilian workforce over that time.

Needless to say, in the case of medical separation because of an accident, there is no question as to whether a plaintiff will lose future earning capacity. The only question is the amount that they would otherwise earn if they had continued their military career. The more difficult questions come in cases in which the plaintiff is still medically fit to serve, but still isn’t quite the same as they were before the injury. These situations are addressed below.

In the context of the military, while the same law applies, proving lost earning capacity not only takes on a greater importance to the total value of the plaintiff’s case, but also requires a different type of economic analysis.

Loss of Future Promotions

In cases in which the injured plaintiff is able to return to full duty, but there remain doubts about whether they will make it as far in their career as they would have without the injury (in terms of both longevity and pay grade), these cases become very complex.

For instance, what happens in the case of a marine who is assigned to officer training school or an administrative/logistical position at the time of their injury, but anticipates being transferred back into the Fleet Marine Forces (FMF) at some point in the near future? Their injury may not pose a major hindrance to their performance in the classroom or at a desk job. But it may be a serious obstacle to being able to fulfill their duties in the operational forces, either in deployment or pre-deployment training.

These cases often require the insight of both medical professionals and military experts to show that despite the plaintiff’s toughness and devoted attitude, they may in fact suffer hidden deficits that will make it more difficult for them to excel than they would have before.

The challenge here is twofold: First, the plaintiff must prove that they would have been promoted to a certain level without the injury. This requires an examination of the plaintiff’s service record, testimony of superior officers, and often the testimony of a military expert familiar with the promotion board process.

Second, they must prove that because of the injury their chances of being promoted to that level are significantly diminished. Medical testimony is critical here. But it is equally critical that the plaintiff be able to show that their current job assignments fall short of the rigors that would be expected of deployment or whatever future assignments they must excel at to be eligible for promotion.

After this, proving the amount of damages is similar to proving the amount of damages in a medical separation case, in the sense that the actual lost earnings in any given scenario are fixed by federal law. The only question is figuring out where the “earnings ceiling” is, and then subtracting the likely outcome as a result of the injury. As with medical separation, the totals will be reduced by the actual projected earnings of the plaintiff and what they would reasonably be expected to make in private employment.

Complexities and Conclusions

In bicycle injury cases involving military plaintiffs, lost earning capacity claims may be a bigger part of the total recovery than in other injury cases because of the fact that military medical bills will usually be smaller than civilian medical bills. You can’t afford to leave this important part of your personal injury settlement on the table. This is why it is critical that you retain the services of an experienced bicycle injury lawyer. Mr. Duquette has devoted a significant portion of his career to helping injured bicyclists, and he is passionate about serving our men and women in uniform. Call him today.


Lost earning capacity claims can be tricky, often requiring the expert testimony of an economist, as well as a great deal of personal information about the plaintiff’s academic history, work history, future prospects, and difficult questions about the extent to which the injury will prevent them from realizing these prospects. But they can also add significant value to a case in which the medical expenses and other out of pocket losses are not very large. Don’t sell your case short. If you’ve been in a bicycle accident and suffered an injury that may have a long-term affect on your career, don’t let these hidden damages go unclaimed.

You can visit the Richard L. Duquette Law Firm blog to read more about bicycling and the law, and you can also hear more on his podcast, 911law.com Podcast.

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