Loss of income after an accident is calculated by comparing your actual financial situation with the probable situation without the accident. The difference between these two scenarios is legally referred to as loss of earning capacity. This complex calculation looks not only at the current salary, but also at allowances, career opportunities, pension accrual, social benefits, and remaining earning potential. A careful substantiation with evidence and a realistic future scenario are essential here.
What is loss of earning capacity?
Loss of earning capacity is the financial damage that arises because you can generate less income after an accident than you probably would have done in the hypothetical situation without the accident. This damage is calculated over the period from the accident, the past, and in the case of permanent limitations over the entire future career.
Legal framework for loss of income
The legal basis for compensation lies in Article 6:95 of the Dutch Civil Code (BW), which determines which financial loss is eligible for compensation. The judge assesses the damage in the manner most consistent with its nature. If the exact extent cannot be determined, the judge may estimate the damage. There must, however, be a sufficient causal link between the liable event and the damage suffered.
The damage caused by reduced earning capacity is determined by comparing the actual income situation with the hypothetical situation without the accident.
Step-by-step plan for loss of income
To secure your claim for compensation for loss of income, it is advisable to go through the following steps.
- Medical file building: ensure adequate medical help and have complaints and limitations recorded directly and consistently by doctors.
2. Evidence collection: collect all relevant documentation about your income before and after the accident.
3. Holding liable: hold the responsible party or their insurer liable in writing for all damage suffered and yet to be suffered.
4. Damage overview: draw up a detailed overview of all missed income and extra costs, and update this periodically.
5. Preservation of time limits: monitor the limitation periods and request advances in a timely manner to prevent financial distress.
What evidence should you keep?
A comprehensive file is needed for a successful claim. Consider employment contracts, pay slips, annual statements, and tax returns from recent years. Pension overviews, information about bonus schemes, and collective labor agreement (CAO) increases are also important. For determining the future scenario, training data, assessment reports, and statements from the employer about any promotion opportunities may be relevant.
Limitation periods and deadlines
For personal injury claims, a limitation period of five years generally applies after the injured party has become aware of the damage and the liable person. Although the exact extent of future loss of income is often not yet known at the time of the first notice of liability, the claim must be interrupted in good time to preserve rights.
Overview of damage items in case of loss of income
In the calculation, direct loss of wages, missed shift allowances, structural overtime, and bonuses may play a role. Career damage, missed periodic increases, promotion opportunities, study delays, lower pension accrual, and the loss of the employer’s contribution may also be important. Furthermore, income from suitable work after reintegration and tax aspects, such as a net-net comparison and a possible tax guarantee, are considered.
Determination of the compensation
The final compensation is not determined on the basis of a standard list, but through an individual comparison. Uncertainties about the future are weighed by balancing reasonable expectations and good and bad chances against each other. In the event of recognized liability, an advance may be requested for damage already suffered. A final settlement is only applicable when the final medical situation has been reached and the career prospects are sufficiently clear.
Practical example
In practice, only looking at pay slips is often insufficient. Missed shift allowances, pension accrual, and a realistic chance of promotion may also be included in the calculation, depending on the available substantiation. If necessary, this requires cooperation with an employment expert and an actuary.
Common pitfalls
Do not limit the comparison to the basic salary and do not forget secondary employment conditions. Do not work with an overly rosy vision of the future without objective substantiation. Take benefits and remaining earning capacity into account carefully
with you. Do not settle a case permanently before the medical load-bearing capacity is stable.
