Tag Archives: personal injury

Calculating Lost Earning Capacity in a California Car Accident

After sustaining an injury in a California motor vehicle accident, whether caused by someone else’s negligence, carelessness, or other wrongful acts, you are entitled to compensation. An accident victim who is left unable to work temporarily or, in extreme cases, permanently, due to an accident-related injury, can quickly fall into debt. Fortunately, California realizes the heavy financial burden such circumstances can place on victims and their families. In California, victims have the right to seek compensation specifically for what is known as “loss of earning capacity” and other economic damages.

California Loss of Earning Capacity and Lost Wages

Lost earning capacity, or time and money yielded due to the detrimental loss of one’s ability to work and garner income in the future, can be calculated and recovered as compensation. Though both “lost wages” and loss of earning capacity are examples of economic damages, the two are notably different. Lost wages or loss of income refers to the money lost from being unable to work while you are recovering before either filing a suit or until a settlement goes into effect. Lost wages are typically easier to calculate as they have already transpired. However, loss of earning capacity looks to establish the hypothetical earnings an individual will lose out on, in the future, due to their injury.

Common Questions Regarding Loss of Earning Capacity

Loss of earning capacity income is not calculated as current wages but is instead a projection of what the victim would have presumably earned if they hadn’t been injured in the accident.

What types of income fall under “loss of earning capacity”?

Including income like hourly wages and salary pay, lost earning capacity examples also include benefits, 401ks, self-employed income (business owners), overtime pay, sick pay, vacation pay, commission, stock options, and potential raises.

 How is loss of earning capacity calculated?

To recover damages for loss of earning capacity, a thorough calculation is made. Along with analyzing earnings, the type of injury also needs to be considered; can you be fully rehabilitated? Will you be able to return to work in the future, and in what capacity, if at all? For example, your employer may be asked to testify about your job performance and outlook. The position you held and potential for growth, your educational background, workforce-related job trends, and the area you live and work in are some additional factors assessed. A medical expert may be asked to describe your injury and how it has impacted your life and health in the present and future. Having a skilled personal injury attorney with ample experience in cases involving economic damages is advisable.

Does an Injury have to be life-changing to qualify for loss of earning capacity?

A common misconception is that lost earning capacity only applies when the plaintiff has sustained an injury from which they cannot recover. However, this simply is not true. Even if the injury could or does resolve in the future, the plaintiff is still eligible for loss of earning capacity at the time of settlement or trial. A serious injury, but not necessarily life-altering, still allows a victim to pursue lost earning capacity damages.

Personal Injury Law in California

Proving that you have lost your earning capacity due to a personal injury is a complex process. Still, it is essential if you want to focus on your recovery plan and eliminate any stress related to debt, future medical costs, and living expenses. A personal injury attorney with extensive knowledge of California personal injury laws will know how to proceed and maximize your compensation successfully. If you or a loved one have suffered a severe injury following a California car accident, contacting an experienced Bay Area personal injury attorney is crucial.

FAQs: California Car Accidents and Personal Injury Claims

Does filing a personal injury claim require a court appearance?

A motor vehicle accident claim is usually settled out of court and through negotiations with the parties and related insurance companies involved. Despite this, many insurers attempt to settle claims quickly and for the least amount possible. However, in instances where the insurance company does not make an acceptable offer, we are prepared to litigate on your behalf for complete compensation.

In California, how much compensation am I entitled to after a car accident?

California allows you to recover both general and special damages.

General damages are for elements such as pain and suffering or how the accident and injury have affected your quality of life. It is challenging to specify how much money should be allocated for such damages as there is no set rule. It typically depends, however, on what kind of injury you suffered, how much discomfort you endured, and how long your injury lasted.

Among special damages are healthcare-related expenses due to the accident (e.g., general medical fees, prescription costs, and therapy or treatment expenses). Also included under special damages may be lost wages and repair costs for your vehicle.

You will receive compensation based on the type of injury you sustained, the cost of hospital care and medical treatment, and any losses you have incurred due to the accident. Many accidents may cause significant trauma to the victim, which deserves consideration when establishing compensation amounts.

Is it possible to seek compensation for both past and future expenses?

Past and current medical expenses are more straightforward to calculate as bills, statements, and receipts are all accessible. Although future medical expenses are not as simple to document, as they have not yet occurred, they can be evaluated and determined. Traumatic brain injuries, spinal injuries, and any injury requiring extensive treatments or long-term therapy can add up quickly as future costs. During litigation or negotiations for compensation, your attorney can establish reasonable estimates for these costs as well as treatment needs. Expert testimony from doctors and healthcare providers is often used for this purpose.

What do I have to prove for my California accident claim to succeed?

California law requires that you prove the other party was negligent in how they operated their vehicle. In other words, you must demonstrate the following factors:

  • The defendant was negligent in how they operated their vehicle or neglected traffic laws. For example, the defendant may have sped, ran a red light, or engaged in distracted driving behavior.
  • That plaintiff suffered an injury.
  • That defendant’s negligence significantly contributed to the harm the plaintiff suffered.

Note: In instances where you are partially at fault for an accident, you may still recover compensation if you can demonstrate that the defendant’s actions also played a meaningful role in the collision.

When pursuing a personal injury claim, how can an attorney help?

Although you won’t always require an attorney to file a car accident or associated personal injury claim, having proficient counsel on your side can significantly reduce the stress of the entire process and ensure you receive just compensation. An attorney can assist in investigating the collision, gathering evidence to demonstrate fault and determine damages, and estimating the value of those damages. In addition, your lawyer may negotiate settlements when appropriate, represent you in litigation and fight on your behalf for your right to complete compensation. Contact our Bay Area personal injury firm today for a free consultation.

A Letter of Protection and How It Helps in a Personal Injury Case

Not everyone involved in an accident may have health insurance. Or, there may be times when a covered person’s insurance denies injury claims arising from an accident.  That means that getting medical attention can be complicated. The injured person may be left with paying medical expenses out-of-pocket. As costs escalate, it increases the chances that a person will be unable to pay. So, what options does a person who was injured by another have for paying medical expenses?

Simply put, a Letter of Protection is a document that helps someone get medical care when they have been injured due to another person’s negligence. A Letter of Protection alleviates the burden that the injured party might otherwise have in paying for medical expenses themselves. Below, we discuss what a letter of protection is and the benefits of using one.

Letter of Protection

A Letter of Protection is a medical lien. When a person is injured, their lawyer will send a Letter of Protection to a doctor or medical provider, which promises to pay for medical bills once a settlement is received. The injured person will get medical treatment without health insurance or cash, asking the doctor to hold their account for collection. Once payment is obtained from the settlement, the lawyer will use it to pay back the doctor.

There many benefits to using a Letter of Protection, but there are also some drawbacks.


If you are not successful in your case against the at-fault party, you are still responsible for paying your medical bills.


One of the benefits of having a Letter of Protection is that the attorney handling the claim can arrange medical appointments. Having such a liaison will ensure that you get immediate attention for your injury. Also, in a personal injury suit, it’s necessary to document the extent of injuries by gathering medical records. It is a tedious process that may take several weeks to obtain all the relevant documentation. However, with a Letter of Protection, it is easier for the attorney to get medical records from one doctor.  Also, fewer medical bills make it easier to pay for medical costs at once.

A Letter of Protection can also protect your credit. Since a Letter of Protection is a contract, our experienced attorneys can input specific language that prevents unpaid bills from being sent to a collection agency for a while. However, a Letter of Protection doesn’t absolve the injured party from paying their medical bills. Even if the case is ultimately lost, the injured party must still pay their medical bills.

Another benefit is that when a doctor provides medical care with a Letter of Protection, they are more willing to give testimony regarding the injured person’s medical injuries. In a personal injury case, the injured party is responsible for proving the extent of their injuries because that’s how the monetary amount is determined. Having a medical expert describe the harm will allow a deeper understanding of the extent of the injury.

Contact an Experienced Personal Injury Attorney

If your medical insurance has denied paying for medical expenses because they believe the other party should pay, or if you don’t have insurance, a Letter of Protection can be a good option. Contact our knowledgeable car accident attorneys at 415-946-8900 or at Dan Rose Law to schedule a free consultation.

Who Can Be Held Liable for Seizure-Related Car Accidents?

In many car accident cases, there will be a clear indication regarding who is at fault for the crash. However, what if one of the drivers experienced a seizure that caused the car accident? If you experienced a car accident that was related to another person having a seizure, who can you hold responsible and liable for your injuries and losses?

Understanding Seizures

In most cases, seizures occur as a result of a medical condition known as epilepsy. If a person has epilepsy, they may pose a greater challenge to other motorists on the roadway because they could have a seizure. However, seizures are often predictable based on identifiable factors. In the United States, people with epilepsy and other seizure disorders are allowed to drive with some legal restrictions if the condition is controlled by medication.

Seizures and Car Accidents

According to the United States National Library of Medicine, only 11 percent of all car accidents involve individuals who had a seizure as a result of epilepsy. This means that most accidents involving drivers with epilepsy are similar to any other car accident. However, there are instances the driver lost control of the vehicle due to a seizure.

Liability When a Driver Has a Seizure

Drivers with epilepsy and other seizure-related disorders often need to get clearance from their doctor in order to drive a vehicle. If you are in an accident with a driver having a seizure, you may have the right to receive compensation for your injuries and losses from them as a result.

Consider the following questions:

  • Did the driver have a medical history of seizures and know that they may have a seizure while driving?
  • How long was the driver seizure-free prior to the accident?
  • Did the driver receive any treatment for epilepsy?
  • Was the driver taking their medication as required?
  • Did the driver lose consciousness before the car accident? How long did the driver feel they were going to lose consciousness before they had a seizure?
  • Did the driver receive a false recommendation from a doctor regarding their ability to drive?

As a victim of a car accident involving a driver who experienced a seizure, you may be able to file a claim against either the driver or even the doctor who negligently certified that the driver could drive with their medical condition.

Contact an Experienced Personal Injury Attorney Today

If you experienced a car accident as a result of another driver having a seizure, you will need to ensure that a full investigation occurs in order to receive compensation for your injuries and losses. These types of cases can prove to be legally complex and challenging. Learn more about your options to hold the other driver liable for your seizure-related car accident by contacting an experienced car accident attorney at The Law Office of Daniel H. Rose at 415-946-8900 or online today.


Key Differences Between Personal Injury Lawsuits and Workers’ Compensation Claims

Suppose you are injured at your place of employment during work hours. You may be wondering what options you have to recover medical expenses and lost wages. Understanding the differences between filing a personal injury lawsuit or a claim under workers’ compensation is an essential first step.

Only certain classes of workers are entitled to workers’ compensation benefits. Unpaid volunteers, independent contractors, and domestic employees in private homes cannot receive workers’ compensation. Therefore, determining whether you qualify can assist you in deciding which claim to pursue.

If workers’ compensation covers your injury, the Division of Workers’ Compensation (DWC) provides administrative and judicial services for benefits. An injured party files a claim with their employer’s insurance carrier. For personal injury lawsuits, a case only starts when the injured party files a petition with a California court.

Below are some key differences between both claims.

  1. Workers’ compensation provides immediate relief

Workers’ compensation provides immediate relief to a worker who suffers a work-related accident. That’s because workers’ compensation benefits are designed to provide the injured employee with medical treatment needed to recover from a work-related injury or illness. It may also include lost wages during the recovery period, rehabilitation, and temporary disability pension while you are unable to work. With very few exceptions, California requires employers to maintain workers’ compensation insurance, even if they only have one employee.

In a personal injury lawsuit, the court tries to quantify the worker’s injuries with a monetary award because it can’t mend broken bones. Depending on the extent of the worker’s injuries, damages can include pain and suffering and punitive damages. Workers’ compensation benefits do not have pain and suffering damages.

  1. No-Fault Needed for Workers’ Compensation

In a workers’ compensation claim, the injured party does not have to show that the employer was “at fault” to prevail on their claim. Workers’ compensation would cover specific injuries, even if the employer or supervisor were not a fault. The injury only needs to be work-related.

Not having to show the employer’s fault is crucial when compared to a personal injury lawsuit. In almost all personal injury lawsuits, the injured party must show that the employer was negligent in their actions, leading to the injury. If the employer can show that they were not negligent, they can immediately dismiss the case.

  1. Workers’ Compensation Does Not Cover All Damages

In a worker’s compensation claim, an injured employee is only entitled to recover reasonable medical care expenses, temporary disability benefits, permanent disability benefits, job displacement benefits if the injured worker cannot return to work, and death benefits.

For personal injury claims, an injured party has the potential to recover the same benefits offered under workers’ compensation, but also pain and suffering damages.

Contact a Skilled Attorney

Once an injured party files a workers’ compensation claim, they cannot file a personal injury lawsuit. Consulting with an experienced personal injury attorney at the Dan Rose Law Firm can help you make the right decision for you.

Can I Sue Someone for Exposing Me to COVID-19?

According to the Centers for Disease Control and Prevention, hundreds of thousands of people in the United States have now lost their lives a result of the COVID-19. There are certain circumstances under which a person may have the legal right to file a claim against another person or entity for exposure to COVID-19. Learn more about your legal rights below.

Basis of Personal Injury Claims

A claim regarding exposure to COVID-19 would fall under personal injury law. In order to have a strong personal injury claim, you would need to prove the following elements:

  • The person or entity had a legal duty and responsibility to you to protect you from COVID-19 exposure.
  • The person breached their legal duty regarding protecting you from COVID-19 exposure
  • You suffered actual exposure to COVID-19.
  • The exposure to COVID-19 resulted in either actually contracting the COVID-19 virus. and/or suffering any other types of economic or non-economic damages.

Legal Duty

In most cases, one human being does not have a legal duty to another human being regarding exposure to viruses. However, there have been cases regarding HIV, where someone knowingly and purposefully infected another person, resulting in a lawsuit. Given the fact that the laws in several areas now require people to wear masks and remain socially distant, an argument can be made that the failure to do so breaches a person’s legal duty and the requirement to ensure the safety of others with respect to COVID-19. Additionally, if an employer failed to provide proper safety equipment, you may have a legal right to bring a claim against your employer for your exposure and development of COVID-19.


While an argument can be made that a person has a legal duty to wear a mask and social distance themselves from others (or quarantine if they have been exposed to the COVID-19 virus), the victim must prove that they received the exposure from this exact person. The evidence to do that may prove legally complex, as it is challenging to directly determine which person gave another person the COVID-19 virus conclusively. You may have the ability to prove causation if an employer failed to send home people who are sick, failed to provide protective equipment, or large gatherings were not appropriately canceled.


Exposure to COVID-19 is simply not enough to file a claim in a court of law. A victim must have suffered actual physical, psychological, or financial harm because of COVID-19 exposure.

Contact an Experienced Personal Injury Attorney Today

To date, nearly 800 cases involving COVID-19 exposure have occurred and many of these claims are directly related to exposure issues and negligence of different parties. If you contracted COVID-19 as the result of someone else’s negligence, consider visiting with an experienced personal injury attorney today at The Law Office of Daniel H. Rose at 415-946-8900 or online who can work with you to help you understand your legal rights.

Difference Between Personal Injury Cases and Wrongful Death Cases

If you suffered injuries in an accident due to someone else’s negligence or if your loved one died as a result of someone’s negligence, you may have the right to file either a personal injury case or a wrongful death case to receive justice and compensation for your injuries and losses. Understanding the difference between personal injury cases and wrongful cases can help you better understand which type of case is right for you.

Personal Injury vs. Wrongful Death Cases

When you suffer injuries or losses as a result of someone else’s negligence, you have the right to file a personal injury lawsuit in order to receive compensation for your medical bills, lost wages, property damage, and pain and suffering. If a person dies as a result of their personal injuries resulting from someone else’s negligence, the family of the deceased person has a legal right to file a wrongful death case. A wrongful death case the same as a personal injury case a victim would file if they had lived after the accident. A family of a victim who dies due to someone else’s negligence may have the legal right to receive compensation for funeral expenses, remaining medical bills, loss of wages, property damage, loss of consortium, loss of companionship, and pain and suffering of the victim.

Types of Personal Injury Cases and Wrongful Death Cases

Many personal injury cases and wrongful death cases stem from similar accidents.. The difference is that in some cases, a victim receives serious injuries (personal injury cases) versus when a victim passes away from their injuries (wrongful death cases). Some of the types of accidents that result in either personal injury cases or wrongful death cases include the following:

  • Car accidents
  • Trucking accidents
  • Motorcycle accidents
  • Pedestrian accidents
  • Bicycle accidents
  • Construction accidents
  • Manufacturing defects
  • Defective drugs
  • Medical malpractice
  • Railroad deaths
  • Defective medical devices
  • Drunk driving accidents
  • Premises liability accidents
  • Slip and fall accidents
  • Nursing home neglect and abuse cases
  • Product liability cases

Parties Who May File a Personal Injury or Wrongful Death Claim

Any person who suffers injuries as a result of someone else’s negligent, careless, or reckless actions may file a personal injury claim in order to receive compensation for their injuries and losses.

If a person dies as a result of their injuries related to an accident due to someone else’s negligence, some family members may have the legal right to bring a wrongful death claim on behalf of their loved one. In most cases, spouses, children, or siblings of the victim can bring a wrongful death claim. In the instance that none of those parties exist, a court may appoint a plaintiff ad litem to prosecute the negligent party in the wrongful death claim.

Contact an Experienced Attorney Today

If you suffered injuries or if you have a loved one who died as a result of someone else’s negligent actions, you may have the right to file a personal injury claim or wrongful death claim. Consider visiting with our experienced attorneys at The Law Office of Daniel H. Rose. We will work on your behalf to ensure that you received the full compensation you deserve. Contact our experienced attorneys at 415-946-8900 or online today.

How Can Hearsay Issues Affect a Wrongful Death Case?

Hearsay is a statement made outside of the court that is then presented as evidence by another person during a trial for purposes of submitting that statement as evidence and as fact. In most cases, hearsay is typically inadmissible evidence when a proper objection is made in a timely manner. However, in wrongful death cases, a deceased plaintiff (victim) may offer testimony prior to his or her death. Learn more about hearsay and how it may impact a wrongful death case.

Wrongful Death Cases

A wrongful death case is one in which the victim dies from the injuries inflicted upon them resulting from someone else’s negligence. If the victim lived, they would have had the legal right to bring a personal injury case to receive justice and compensation for their injuries and losses. Because the victim died, the family members of the victim have the legal right to pursue this justice and compensation on behalf of their loved one.

Testimony of the Victim

Many wrongful death cases include testimony from different parties as well as evidence that is presented to the court in order to make a determination of liability and responsibility for negligence with respect to an accident. If the victim lived, they would have had the legal right to testify on their own behalf. However, due to the fact that they passed away from their injuries prior to a trial, the question remains whether or not any statements made by the victim can be introduced as evidence.

Hearsay Exception – Dying Declaration

There is a hearsay exception which is the “former testimony” exception, where evidence is admissible if the other side had an opportunity to cross-examine or introduce the testimony at a prior time. See Fed. R. Civ. P. 804(b)(1); Conn. Code Evid. § 8-6(1); Mass. G. Evid. § 804(b)(1); R.I. R. Evid. 804(b)(1); see also Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986).

However, the more common hearsay exception that occurs within wrongful death cases is the “dying declaration” exception. If a victim made a statement under the belief that their death was either “imminent” or “impending” and their statement was directly related to the cause or circumstances surrounding their death, it can be admitted as evidence as an exception to the hearsay rules. See Fed. R. Evid. 804(b)(2); R.I. R. Evid. 804(b)(2).

It is important to note that Dead Man Statutes (allowing a hearsay exception for the admissibility of a decedent’s statements) is available only in Connecticut, Massachusetts, and Rhode Island. While some plaintiffs still attempt to admit the testimony of a deceased victim under these Dead Man Statutes, in most cases, they will not be allowed within a wrongful death case.

Contact an Experienced Attorney Today

If your loved one died as a result of someone else’s negligence, you may have the legal right to submit their testimony at a wrongful death trial under a “dying declaration” exception to the hearsay law. The laws surrounding wrongful death cases remain complex and legally challenging. Call our experienced attorneys at The Law Office of Daniel H. Rose. We will work on your behalf to ensure that the legal rights of your loved one remain protected. Contact our experienced attorneys at 415-946-8900 or online today.

What Are Non-Economic Damages in Wrongful Death Cases?

If your loved one died as a result of someone else’s negligence, as a family member you may have the legal right to file a wrongful death lawsuit to receive justice in the State of California. While no amount of money will bring back your loved one, you may have funeral expenses, remaining medical bills, lost wages during the time your loved one was too injured to work, or property damage. However, as a family member who lost a loved one, you may have the legal right to also bring non-economic damages as part of your wrongful death lawsuit. Learn more about the different types of non-economic damages that you may have the legal right to receive in a wrongful death case.

Understanding Non-Economic Damages

Non-economic damages represent more intangible items that represent the loss that a family experiences following a loved one’s death. While these items are truly non-economic, the courts will attempt to assign a financial amount to these damages in an attempt to allow a family to receive justice because they lost their loved one due to someone else’s negligence, carelessness or recklessness. Some of the types of non-economic damages are explained in more detail below.

Spouse and Family Loss

When someone loses a family member, they lose the ability to share a life with them. Spouses lose their life partner, and children lose a parent to guide them through life. This loss of comfort, loss of instruction for children, loss of services in the home and in life, loss of guidance, loss of support, loss of counsel, and loss of training for children is devastating. This loss of consortium and loss of companionship impacts the family permanently. The calculations regarding loss of consortium and loss of companionship are incredibly complex and legally challenging. Visiting with an experienced wrongful death attorney can help you understand your legal rights and realize how you may have the right to file for these types of non-economic damages in your case.

Loss of Income

Your loved one likely was unable to return to work following their accident, resulting in lost wages. Lost wages may include not only a salary or wages, but also missed bonuses, missed promotions, lost employee contributions, lost pension contributions, lost vacation or sick leave, lost transportation allowances, and more. However, if your loved died, then you may also have the ability to include loss of future income as part of your wrongful death claim. The calculation for the loss of future income can also be legally challenging and complex.

Contact an Experienced Attorney Today

There are other types of non-economic damages including the pain and suffering your loved one experienced as a result of their injuries in their accident. Visiting with an experienced attorney can help you better understand what types of non-economic damages you may have the right to file in your wrongful death case, and what amount of compensation you may receive on behalf of your loved one. We understand you are likely grieving during this emotional time and look forward to helping you through this process. Call our experienced attorneys at The Law Office of Daniel H. Rose. We will work on your behalf to ensure that you received the full compensation you deserve. Contact our experienced attorneys at 415-946-8900 or online today.