Lost earnings after incapacity for work caused by an accident

An accident can cause more than medical expenses when it leads to incapacity for work. If you earn less, lose variable pay or cannot accept an assignment, the question of compensation for lost earnings arises. A reference to sick leave alone is not enough.

Section 1325 ABGB expressly refers to lost earnings and, where an injured person becomes unable to work, future lost earnings in addition to medical costs and compensation for pain and suffering. The assessment depends on the actual course, the occupation, the income likely without the accident and the payments actually received. This article explains how to prepare that assessment.

Section 1293 ABGB distinguishes damage to property from profit that would normally have been expected. Under section 1295(1) ABGB, the injury, wrongful and culpable conduct, damage and legal attribution must fit together for a claim to succeed.

After accident-related incapacity, the loss is not automatically every difference between an earlier and later bank balance. The relevant comparison is the income probably earned without the harmful event and the amounts actually paid. This may include regular pay, supplements, commissions, tips, self-employed income or an assignment that could not be accepted.

The portal section on professional damage and loss of earnings provides a broader overview. This article focuses on incapacity for work after an accident and the documentation needed for that specific situation.

Incapacity describes the medical and professional restriction. Loss of earnings describes the resulting financial disadvantage. The two are connected but not identical. Sick leave may coincide with continued pay, sickness benefit or another payment. The actual loss must then be calculated by comparing expected income with the amounts received.

A precise timeline is essential. Record the accident, first medical finding, beginning and end of each sick-leave period, reviews, gradual return, actual return to work and every change in duties. If the sick leave was extended, the medical reason for each period should remain identifiable.

A certificate confirming incapacity does not by itself show which professional activity was impossible. Physical work, shift work, commission-based roles and self-employed activities may require different evidence. Partial capacity may lead to a reduced, rather than complete, loss.

Employees should preserve payslips from several months before the accident and for the period afterwards. Work schedules, time records, overtime arrangements, commission statements and evidence of regularly earned allowances may also be required. The more variable the income, the more important a consistent comparison period becomes.

A one-off payment would not necessarily have been earned without the accident. For a bonus or commission, explain what triggered the payment and whether those conditions would probably have been met. For shift allowances, the planned shifts and the actual period of incapacity may be relevant.

Compare the likely income with continued pay, sickness benefit and other payments. The claim is not automatically based on the full gross amount. Amounts already compensated, deductions and the legal classification of the payment must be considered. The damage documents checklist can help organise the records.

For self-employed people, the loss will rarely appear in one payslip. Appointment calendars, offers, concluded contracts, invoices, accounting records, VAT returns and the development in previous years may all matter. The assessment must identify the personal work that could not be performed and whether somebody else could take over.

A fall in turnover is not automatically lost earnings. Seasonal changes, general market developments, cancellations for other reasons or missing operating resources may also affect the result. The accident-related part must be separated from other causes.

For a specific assignment, preserve the contract, agreed service, deadline, expected surplus and reason it was lost. Lost turnover and lost profit are different. Costs saved because the work was not performed may be relevant to the actual loss.

The timing of the accident and the income loss is an important indication, but it does not prove causation on its own. The evidence should connect the injury, the requirements of the job, the incapacity and the financial consequence. Medical findings should describe the restriction, while employment documents should show its effect on the work.

The assessment becomes harder where symptoms existed before the accident, capacity was only partly restricted or several events contributed. The development before and after the accident should then be documented as completely as possible. A later deterioration should be explained medically and financially as separate questions.

Section 1304 ABGB also requires possible contributory negligence to be considered. This may concern delayed treatment, an unexplained extension of the absence or failure to take reasonable steps. Whether such an allegation is justified depends on the facts and should not be assumed generally.

During incapacity, different payments may continue or replace the usual income. These include continued pay by the employer and sickness benefit from social insurance. Section 138 ASVG regulates sickness benefit arising from incapacity due to illness. The amount and entitlement depend on the personal and employment-related requirements.

For the damage calculation, these payments must be compared with the income likely without the accident. A payment cannot simply be ignored because it came from another body. Conversely, the same loss cannot be claimed again where it has already been fully compensated.

Collect payslips, payment records, decisions and notices from the social insurance institution. If a payment covers only part of the loss, state the period and legal basis clearly. Each period should be shown separately rather than hidden in one total.

A useful loss schedule connects each item with a period, amount, document and calculation step. Start with the income before the accident, document the likely development and deduct payments actually received. Explain one-off payments and saved expenses briefly.

The damage documentation check can organise records and open questions. The claim check can help identify whether the claim is ready for an initial review. Neither tool replaces an assessment of liability or medical causation.

Under section 1489 ABGB, a compensation claim generally becomes time-barred three years after knowledge of the damage and the person responsible. Progressive personal injuries may raise additional questions about knowledge and the extent of damage. Record early when each income consequence and possible responsible party became known. The guidance on evidence, negotiation and limitation covers further preparation.

You can receive new articles and legal information from the firm through BRANDaktuellen Rechtsnews. Subscribe to the newsletter.