FAQ: Lost wage recovery and proof after a minor neck or back injury in New York

Quick disclaimer: This is general information about New York law and common proof strategies. It is not legal advice. If you have a dispute with an insurer or employer or need help valuing or proving a damage claim, consult a licensed New York attorney.

Detailed answer — how to calculate lost wages and what counts

When you miss work because of emergency room visits or physical therapy for a minor neck or back injury, the core idea is simple: recover the income you actually lost because you could not work. But different facts (hourly vs. salaried work, self-employment, no-fault insurance, workers’ compensation) change how you calculate and prove that loss. Below are step‑by‑step rules and examples to help you assemble a reliable lost‑wage claim under New York law.

1) Is wage loss recoverable?

– If your injury is from a motor vehicle accident in New York, you can seek “loss of earnings” through the insurer’s no‑fault benefits system (Insurance Law). See New York Insurance Law §5102 for what no‑fault covers: https://www.nysenate.gov/legislation/laws/INS/5102

– If the injury happened at work, wage replacement is handled through New York Workers’ Compensation. See the New York State Workers’ Compensation Board overview for wage replacement: https://www.wcb.ny.gov/content/main/subjects/benefits.jsp

– If you sue a third party (negligence claim), lost earnings are an element of damages in a personal injury suit. In New York, most personal injury actions must be started within the statutory period — generally three years for negligence claims. See CPLR §214: https://www.nysenate.gov/legislation/laws/CPLR/214

2) What types of earnings can you claim?

• Regular hourly wages or salary (gross wages are used as the baseline).
• Overtime pay you would have earned during missed hours.
• Commissions, piecework, tips, bonuses and shift differentials — if they are a regular part of your income and you can prove the amounts.
• Self‑employed income: lost profits or net earnings substantiated by bookkeeping, invoices, contracts, and tax returns.
• Future lost earnings or lost earning capacity (requires medical and vocational evidence).

3) Who pays first and what limits apply?

– Motor vehicle accidents: start with no‑fault benefits in New York (Insurance Law). No‑fault covers reasonable and necessary medical expenses and basic economic loss, including loss of earnings. (See Insurance Law §5102: https://www.nysenate.gov/legislation/laws/INS/5102 and claims procedures in Insurance Law §5103: https://www.nysenate.gov/legislation/laws/INS/5103.)

– If no‑fault is insufficient or exhausted, the injured person may assert additional loss in a lawsuit against a negligent third party (subject to statutes of limitation and threshold rules).

4) Practical calculation methods (with examples)

Collect documentation and then compute lost wages using the method that fits your employment type.

Hourly employee

Formula: hourly rate × hours missed (include actual time away from work for ER/appointments plus reasonable travel/waiting time if it caused lost work time).

Example: $20/hour, missed 6 hours total for ER and PT (including travel) = 20 × 6 = $120.

Salaried employee

Common approach: convert salary to a daily or hourly equivalent and multiply by days or hours missed.

Example: $60,000/year. Typical work year = 52 weeks × 5 days = 260 workdays. Daily rate = 60,000 / 260 = $230.77. If you missed one workday for ER and partial day for PT totaling 1.5 days lost = 230.77 × 1.5 = $346.16.

Self‑employed / contractor

Use tax returns, invoices, bank deposits, profit & loss statements, and client communications to prove lost profits or fees you could not earn. Courts and insurers look to net earnings after reasonable business expenses.

Example: Average monthly net from Schedule C = $4,000. If you lost two days of billable work in a 20 workday month, pro‑rata loss = 4,000 × (2/20) = $400.

Partial days and rounding

Track exact hours missed. Don’t round up without evidence. If you use sick or vacation pay instead of unpaid time off, document that substitution — the insurer may treat substituted paid time differently.

Overtime, commissions, bonuses

Recover these if you can show a pattern or expectation (recent pay stubs, employment agreement). For irregular bonuses, use average over a relevant period (past 12–24 months) and clearly document the basis.

5) Evidence you must gather

• Pay stubs covering the injury period (showing gross pay, hours, overtime, deductions).
• Employer letter or verification stating normal schedule, hours missed, and wage rate.
• Income tax returns (W‑2s, Schedule C) for self‑employed or to show average earnings.
• Time sheets, clock‑in/clock‑out records, and payroll reports.
• Medical records showing dates and times of ER visits and PT appointments and notes tying those visits to your injury.
• Appointment cards/confirmations, receipts, and mileage or parking receipts for travel time if you claim travel time as lost work time.
• Any correspondence with your employer about time off or schedule changes.

6) Example combined calculation (hypothetical)

Facts: hourly employee earning $25/hour. Missed 4 hours for ER (including travel) and three 1‑hour PT sessions over two weeks because appointments were during work hours. Total lost hours = 4 + 3 = 7 hours.

Calculation: 25 × 7 = $175 lost wages. Support: pay stubs showing $25/hr, employer confirmation of missed hours, and the ER/clinic visit records showing dates and times.

7) Common disputes and pitfalls

• Insurers request proof that time away was necessary and directly caused by the injury — medical notes linking the appointment to the injury help.
• Employers sometimes refuse to provide verification — request a written verification and preserve emails or HR forms.
• Failure to mitigate: if you could have scheduled PT outside work hours but did not, the insurer may contest part of your claim. Keep evidence of scheduling attempts.
• For no‑fault claims, follow the insurer’s documentation rules closely and respect filing deadlines (see Insurance Law §§5102–5103: https://www.nysenate.gov/legislation/laws/INS/5102 and https://www.nysenate.gov/legislation/laws/INS/5103).

Helpful Hints

• Begin collecting evidence right away: pay stubs, tax returns, employer verification, appointment confirmations, and medical records.
• Track exact start and end times for each appointment and the time you were unable to work because of travel, waiting, or recovery.
• Ask your employer for a written note confirming which shifts or hours you missed and whether paid leave was used.
• For self‑employed workers, keep contemporaneous logs, invoices you missed, client emails cancelling or rescheduling, and bank deposits that show lost business.
• If a no‑fault insurer is involved, file claims and submit documentation promptly. Insurance Law rules govern what the carrier must pay and the procedures to follow (see Insurance Law §5102: https://www.nysenate.gov/legislation/laws/INS/5102).
• Preserve proof of efforts to schedule medical care outside working hours if possible — this helps defend against a mitigation argument.
• Keep copies of everything and maintain a simple spreadsheet that lists date, hours missed, wage rate, and supporting document IDs (e.g., paystub #, employer email, visit note #).
• Note deadlines: if you may bring a negligence suit, you usually have three years from the accident under CPLR §214: https://www.nysenate.gov/legislation/laws/CPLR/214
• If the insurer or employer disputes the amount or entitlement, consider legal help to gather proof and negotiate or file a claim.

Again: this information is educational only and is not a substitute for legal advice. For help applying these rules to your situation, consider speaking with a New York attorney who handles personal injury, no‑fault insurance, or workers’ compensation matters.