Detailed Answer
Under West Virginia law, lost wages represent the income you would have earned but for an injury or wrongful act. They comprise economic damages in personal injury lawsuits and compensation benefits in workers’ compensation claims. When direct payroll records are missing, West Virginia courts and the Workers’ Compensation Commission allow claimants to reconstruct lost wages using secondary evidence and reasonable estimation. The key is to establish your earnings with a reasonable degree of certainty.
Workers’ Compensation Context: West Virginia Code 723-5-8 outlines how to calculate wage-loss benefits based on your pre-injury average weekly wage. If your employer’s payroll records are unavailable, the Commission may accept federal tax returns, pay stubs, or other credible evidence to determine your average weekly wage (W. Va. Code 723-5-8).
Personal Injury Context: In a personal injury suit, lost wages are recoverable as special damages. Under the West Virginia Rules of Evidence, Rule 1004 permits the use of secondary evidence—such as testimony or copies—when originals are lost or unavailable. Courts will accept reasonable approximations supported by verifiable data.
Common Methods to Reconstruct Lost Wages:
- Tax Returns and W-2 Forms: Calculate annual or monthly income from federal tax returns or W-2s, then break it down into weekly or hourly figures.
- Bank and Deposit Records: Review direct deposit entries or check amounts to infer pay frequency and rates.
- Affidavits and Declarations: Provide sworn statements from yourself, coworkers, or supervisors about your typical hours and pay rate.
- Employer or Payroll Service Testimony: Depose someone with knowledge of your earnings to supply a sworn statement.
- Industry and Government Data: Use Bureau of Labor Statistics data for your occupation and region (BLS.gov) to corroborate your estimated pay rate.
- Time Cards and Scheduling Records: Collect emails, calendars, or shift schedules that reflect your usual hours.
- Expert Witness Reports: Retain an economist or vocational expert to calculate lost earnings based on your work history and local labor market.
Helpful Hints
- Begin gathering alternative documentation immediately to prevent disputes during discovery.
- Organize evidence chronologically to demonstrate consistency in your hours and pay rate.
- Maintain a personal log or diary of work hours and interruptions following an incident.
- Consult a licensed West Virginia attorney early to help preserve and subpoena necessary evidence.
- Label all evidence clearly and prepare an index summarizing each document’s relevance.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. For advice specific to your situation, consult a licensed West Virginia attorney.