Future Loss of Capacity Claim
A future loss of capacity claim is a claim for loss of opportunity to earn wages into the future because of the injuries from the accident. The claim is still available even if you have returned to your preaccident employment after the accident. This is because the law is clear that where your injuries have a permanent nature to them and preclude you from working at certain occupations, you are still entitled to compensation even though you are back to your pre-accident employment. The theory goes that at some point in your future, you may not continue to work at your pre-accident employment but try some other employment. If your injuries preclude you from working at a certain job or group of jobs then you are entitled to compensation.
The claim for future loss of capacity is easier to make out where you have returned to some employment since the accident, but you are not working to the same extent that you were before the accident. Also, if you are still unemployable at the time of the trial or settlement due to the injury suffered in your accident, a future loss of capacity claim is clearly available.
ICBC, in response to the raising settlements and awards for future loss of capacity, has implemented an internal procedure whereby in order to pay out a future loss of capacity claim, there must be a committee decision allowing such a payment. ICBC’s view on future loss of capacity is very conservative and often becomes the central dispute in a lawsuit. Indeed, they often resist any payment for future losses.
If your injuries give rise to a future loss of capacity award, you definitely need legal representation.