Texas Lost Earning Capacity and Vocational Economic Proof

How vocational experts and economists show what a catastrophic injury took from your ability to earn, and how the defense tries to shrink that number.

What are you actually claiming?

Before the crash, Luis wired buildings for $38 an hour. After it, he can price jobs from a desk for less. The space between those two numbers, carried out to the end of his working life, is lost earning capacity.

Four people usually build that number:

Luis, a hypothetical: 34, a commercial electrician, 12 years on ladders. April, Garland: a delivery van runs a red light. A C6 neck fracture. His surgeon's verdict on ladders: done.

New to this? Start with lost wages vs loss of earning capacity first, then how to prove lost earnings and earning capacity.

Which Texas rules cut the number down?

Four of them, in this order:

Who may give these opinions? Texas Rule of Evidence 702 allows a qualified expert when specialized knowledge helps the jury. So ask a vocational expert one thing before you hire: have you worked with electricians, or nurses, or whatever the trade is?

How does the vocational expert get from "can't work" to real jobs?

Nobody hires for "can't work." Employers hire for "no ladders, no lifting over 10 pounds." The expert starts there.

Bring these to the first meeting:

• doctor's notes with any lifting, standing, or hours limit
• a job description, or a coworker who did the same work
• licenses, certificates, training records
• three years of pay stubs and W-2s
• dates of any return-to-work try, and why it stopped

What work is still open?

Usually something. Usually for less money.

Luis moves to estimating or dispatch. A 45-year-old nurse with a brain injury might handle part-time clerical work from written task lists; her 12-hour medication shifts are gone. A roofer with a crushed foot bids jobs from the ground. A 28-year-old warehouse lead who loses a leg below the knee may run inventory from a chair after prosthetic training. He has close to 40 working years ahead, and every one of them is in the math.

What do you say when the defense says "he can be a cashier"?

It comes up at Luis's deposition. The defense vocational expert reads a job list, and cashier is on top.

Luis's lawyer asks how long he can stand at a register. The expert concedes his restrictions don't allow a full shift. Next question: what does it pay?

The line changes from case to case. She went back to work. He can retrain. There are hundreds of listings. The same three questions answer all of them:

1. How far away is the job?
2. What does it pay?
3. Can a new supervisor take the accommodations away?

Don't overreach in the other direction. "Never earn another dollar" collapses the moment the jury sees you can do some work.

Why doesn't a busy business mean no loss?

Ray's roofing company kept billing after his fall. The defense loves that. The missing piece: who did the work. A crew lead Ray hired, paid out of Ray's profit. Texas looks at profit, not gross receipts.

Net, the three years before the fall: $61,000. $74,000. $58,000. All three go in. Only the $74,000 year? The defense calls it cherry-picking, fairly.

Four sets of paper:

1. tax returns and schedules: the net figures
2. profit-and-loss statements, bank records: real expenses, year by year
3. the crew lead's payroll: the new cost, counted once (not lost income and labor both)
4. bids Ray turned down: jobs he couldn't do

What should you ask about the economist's report?

Every assumption belongs on the page:

A rate without a source is the defense economist's first deposition question.

What if you never had a paycheck?

Ana was 15 and on the honor roll when a crash left her with a brain injury. No job, no W-2. Her claim rests on report cards, test scores, what her teachers saw, and how far her parents went in school. "She wanted to be a doctor," with nothing behind it, adds little.

Other people without pay stubs have their own paper:

Two idle months don't make the welder's capacity zero.

Ana has a second problem: two clocks. Section 16.001 generally pauses her own two-year period until she turns 18. Her parents' claim for the medical bills they pay while she's a minor may already be running.

For the full picture, see the Texas catastrophic injury claims guide or the Texas Catastrophic Injury and Damages Hub.

Frequently asked questions

Can I claim lost earning capacity if I'm back at work?

Going from 36 hours a week to 24 still counts. So does losing the path to foreman. The jury weighs the return to work with everything else.

I tried light duty and had to quit. Does that hurt my claim?

Not if a doctor explains why you stopped; that can even help. Save four things: the start date, the duties, your last day, and the note.

Do I need both a vocational expert and an economist?

Most catastrophic injury cases use both. The vocational expert says which jobs you can still hold. The economist says what the gap is worth.

Why does Texas reduce the number for income taxes?

Because § 18.091 says lost earnings come in as a net loss after federal income tax. The judge also tells jurors whether the award itself is taxable.

Will a defense vocational expert examine me?

The defense may ask for a vocational interview. The parties usually negotiate the terms, or the court sets them. Talk to your lawyer before agreeing to any test or interview.

What if my business income dropped for other reasons too?

Say your biggest customer left the state that same year. The economist has to separate that loss from the injury, and you should raise it before the defense does.

Sources

1. Tex. Civ. Prac. & Rem. Code § 18.091
2. Tex. Civ. Prac. & Rem. Code § 41.001
3. Tex. Civ. Prac. & Rem. Code §§ 33.001, 33.012
4. Tex. Civ. Prac. & Rem. Code §§ 16.001, 16.003
5. Texas Rules of Evidence (effective July 2, 2026)

This article provides general information about Texas law, not legal advice. Every case depends on its facts, evidence, insurance, deadlines and governing law. Past results do not guarantee a similar outcome.