Evidence for employees, business owners, and future work losses
You may be back at work and still earning less after a car accident. Missed shifts are one part of the claim. Lost overtime, a job you can no longer perform, or the cost of hiring someone to cover your work may need a different calculation. Start with what changed at work, then gather the records that explain why.
What did the injury change at work?
There are two questions to work through. How much income did you miss while recovering? And has the injury limited the work you can earn money doing? The first looks at a period of lost pay; the second concerns earning capacity. Check for paid leave, lost overtime, and temporary help even if your salary stayed the same. A difficult return to work does not establish that the limitation will last.
Records an employee should keep
| Record | Question to answer |
|---|---|
| Payroll, schedules, and time sheets | Which hours were missed, and what rate applied? Keep regular time and overtime separate. |
| Earlier overtime records | Were comparable shifts actually available during recovery? Compare your usual pattern with the employer’s schedules. |
| Job description and assignments | Which task could you no longer do? Include lifting, driving, or other demands the written description omits. |
| Work notes and leave balances | When did the restriction begin, change, or end? Explain continued pay, disability benefits, and any workers’ compensation payment. |
| Promotion application and training | What position were you pursuing, and which requirement did the injury prevent you from meeting? Obtain the employer’s criteria. |
| Messages about modified work | Who changed the assignment or helped with a task? Record their name and what they observed. |
In a hypothetical payroll check, four missed eight-hour shifts at $25 an hour total $800 gross. Confirm the rate and hours in the employer’s records. Counsel must still address benefits, causation, and the federal-tax adjustment under section 18.091.
Self-employed losses need more than a revenue total
For self-employment, assemble a job-by-job account of the missed work. Note your role on each project and what happened after you were injured. The customer correspondence and invoices should let someone check whether the project disappeared, moved to a later date, or went ahead with paid help.
- For a canceled project, retain the agreement and the customer’s cancellation message. Identify the price and expenses the job would have required.
- For a project someone else completed, match that person’s invoice or payroll entry to the job and the payment.
- Delayed work: record when it was eventually performed and paid, along with any added expense.
- Seasonal changes: compare relevant periods in earlier years, and identify changes in demand unrelated to the crash.
Gross receipts include money that would have gone toward materials, labor, and other expenses. A lost contract’s full price is therefore not automatically the owner’s lost income. If hired help completed the contract, examine the added cost and any remaining loss. Counting both the entire contract and the expense of completing it can count the same harm twice.
Take the accountant the tax return, business books, and canceled-job records. Differences may come from depreciation, investments, payment timing, or business structure. Have the accountant reconcile them. Keep originals, identify errors for counsel, and obtain appropriate discovery protection for confidential customer information.
Two examples of losses a paycheck can miss
A hypothetical mechanic earns the same base rate after returning to work but has a lifting limit. The missed heavy-repair assignments used to bring overtime. Schedules and pay statements can help establish whether those assignments were available and how much overtime was probably lost during the restriction.
Now consider a consultant whose clients stay with the business because a temporary worker completes the projects. Revenue may look unchanged, but invoices for that worker show an expense the owner did not previously have. The records must still show how much of the expense resulted from the injury. These are hypothetical examples, not reported firm cases.
Medical restrictions come before a lifetime projection
Ask the treating provider what work you can do, what you should avoid, and when the restrictions should be reviewed. A lifting limit for six weeks is different from a lasting limit. A possibility that treatment might fail is also different from a present opinion that you will never return to your trade.
A doctor can identify a lifting restriction without knowing which local jobs you could obtain. That employment question may call for a vocational specialist, who considers your education, skills, and work history. An economist can then calculate the financial consequences. Ask which witness supports each step. The economist’s arithmetic cannot establish a medical restriction that no provider supports.
The employment assessment should address accommodations, retraining, and work you can still do. A job advertisement alone does not establish that you can obtain and perform that job. Equally, being unable to return to one physically demanding trade does not establish that you have no remaining earning ability.
A future-loss report should make it possible to follow the calculation. Look for the assumed return date, post-injury pay, remaining work life, benefits, wage growth, tax treatment, and any discount to present value. Changing the return date by six months is one way to test the estimate. A large change in the total calls for a closer look at the medical prognosis behind that date.
Texas requires attention to taxes in earnings evidence
Gross payroll is not the end of the calculation. Under Texas Civil Practice and Remedies Code section 18.091, evidence of the listed earnings-related losses must account for federal income taxes or unpaid federal tax liability in arriving at a net loss. The statute also calls for an instruction on whether compensatory damages are subject to federal or state income taxes. Counsel should address both the figures and the instruction for your case.
Connect the work restriction to the crash
A work note establishes little about causation if it does not explain the condition behind the restriction. Counsel may need the earlier medical history, the first examination after the crash, test results, treatment records, and later changes. Prior symptoms and later accidents belong in that history too.
Tell your doctor and lawyer what you could do before the collision and what changed afterward. If you previously had back pain but could still do the job, say so. If symptoms improved, say that as well. Imaging findings, including degeneration, need to be considered with the examination and history rather than treated as a complete explanation by themselves.
A later collision was at issue in JLG Trucking LLC v. Garza, 466 S.W.3d 157 (Tex. 2015). The Texas Supreme Court ordered a new trial because the trial court improperly excluded evidence relevant to causation and to questioning the plaintiff’s expert. Give counsel the material history early enough to investigate it. Whether a later accident belongs in evidence still requires a case-specific admissibility analysis.
Ask work witnesses about what they observed
Give counsel a witness list with one sentence describing each person’s involvement. “Changed my assignment” identifies a supervisor worth interviewing. “Carried the equipment on our route” identifies a coworker with a different account. Obtain accurate observations. A witness who saw you struggling is not thereby qualified to diagnose the cause.
If work stopped for a reason besides the injury, identify that reason and its dates. An employer’s closure or a business downturn may account for some missed earnings. Give counsel the earlier attendance records and inconsistent job applications as well.
Account for future care and settlement expenses
Future treatment can affect both medical costs and the time you expect to miss work. Ask the provider which care is recommended now and which would be considered only if your condition changes. A supported course of therapy should not be described the same way as surgery that remains conditional.
Medical recommendations may support a life-care plan for extensive needs. Check the plan against those recommendations and against other experts’ calculations. Transportation and household assistance are common places to look for duplicate entries. Review how long each service would last; pricing it is a separate task from establishing that it will be needed.
Ask for an itemized settlement-distribution estimate showing the fee, expenses, other deductions, and your net amount. Discuss the cost and delay of trial and whether coverage or assets could pay a judgment. Before releasing the claim, consider with counsel who bears the expense if recovery takes longer or treatment costs more.
The client decides whether to settle under Texas Disciplinary Rule of Professional Conduct 1.02. Obtain counsel’s advice and an estimate of the fees, expenses, and reimbursement deductions before making that decision. Read the release with counsel so you understand the claims it resolves.
Questions about work-loss claims
Can I claim a loss if I returned to my job?
Possibly. The return date does not erase pay missed earlier. Continuing overtime or earning-capacity losses require medical and work evidence supporting the limitation, the lost opportunity, and the calculation.
Do tax returns prove the whole loss?
Usually more context is needed. Returns can help establish earlier earnings, but invoices, expense records, schedules, and medical restrictions help explain what changed and why. For a business, identify canceled work separately from work that was merely delayed.
Is an employer note enough?
It may be useful, especially if it identifies dates, duties, pay, and the records used. Counsel may still need the underlying payroll and attendance records, medical support for the absence, and a calculation of the claimed loss.
Discuss the work records with Aaron Herbert’s firm
Contact the firm with the records available now. Identify missing records and the person or business holding them. At the consultation, discuss the next records to obtain, any approaching deadline, and whether an employment or financial expert is needed.
Aaron A. Herbert is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. You can read the firm’s published background and case results. Past recoveries do not guarantee a result in your case.
Call 214 200 4878 or request a free consultation with The Law Firm of Aaron A. Herbert, P.C. Before signing, ask who will handle the case and how the fee agreement treats expenses. Referring attorneys can use the contact page for a litigation discussion. Confirm that the firm has accepted the matter and who is responsible for deadlines before transferring responsibility.
Related car accident resources
- Preexisting Injuries and Medical Causation After a Texas Car Accident
- Medical Bills and Future Care After a Texas Car Accident
- Serious and Catastrophic Car Accident Injuries in Texas
Legal sources
JLG Trucking LLC v Garza 466 SW3d 157 Tex 2015.
Texas Rules of Civil Procedure effective October 1 2026.
This is general information about Texas law. Your claim requires review of its facts, policies, court orders, and governing law. The hypothetical examples do not describe cases handled by the firm.
ABOUT THE ATTORNEY
Aaron A. Herbert
Founding Attorney
Board Certified in Personal Injury Trial Law
Aaron founded The Law Firm of Aaron A. Herbert in 2010 to focus on developing each client's case and seeking its maximum value. For over a decade, he has represented people seriously injured in major accidents and industrial catastrophes, pursuing trial verdicts and settlements while working to reduce the stress of litigation.
Education
- Texas A&M University · B.S., Criminal Justice, 1999
- University of Oklahoma College of Law · J.D., 2002; graduated in the top of his class
Trial experience & approach
Aaron earned numerous jury verdicts at boutique personal injury litigation firms. According to his biography, he spent a year as the top-earning litigation attorney at a firm that frequently appeared in verdict searches as having one of the highest numbers of trial wins in Texas. At another Dallas personal injury firm, he moved from managing pre-litigation attorney to managing litigation attorney over seven years as the firm grew into one of Dallas's largest personal injury firms.
His biography describes a reputation as one of America's most aggressive trial lawyers, with noteworthy recoveries from judges and juries and substantial pretrial settlements. Most of those settlements included confidentiality agreements requested by the defense. Aaron has said the recoveries were justified by the injuries and losses involved, which no amount of money could make someone choose to experience.
His approach combines passion, preparation, persistence and courtroom imagination. He believes a well-supported, engaged and motivated team working cooperatively helps deliver strong representation, with the goal of achieving the best possible result for every client.
Dallas roots, military service & publication
Born and raised in Dallas, Aaron enlisted in the United States Marine Corps after high school and later received an Honorable Discharge. He completed his university and law degrees after his military service and became a lifelong Sooners football fan in law school.
Publication: “Litigating Dog Bite Cases,” Texas Dog Law Seminar, Dallas, 2009.
Professional affiliations & recognition
Professional affiliations and recognition listed in Aaron’s biography:
- State Bar of Texas
- American Bar Association
- Association of Trial Lawyers of America (now American Association for Justice)
- Texas Trial Lawyers Association
- Dallas Trial Lawyers Association
- Dallas Bar Association
- Tarrant County Bar Association
- Million Dollar Advocates Forum
- The National Trial Lawyers – Top 100 Trial Lawyers
Trial experience & approach
Aaron earned numerous jury verdicts at boutique personal injury litigation firms. According to his biography, he spent a year as the top-earning litigation attorney at a firm that frequently appeared in verdict searches as having one of the highest numbers of trial wins in Texas. At another Dallas personal injury firm, he moved from managing pre-litigation attorney to managing litigation attorney over seven years as the firm grew into one of Dallas's largest personal injury firms.
His biography describes a reputation as one of America's most aggressive trial lawyers, with noteworthy recoveries from judges and juries and substantial pretrial settlements. Most of those settlements included confidentiality agreements requested by the defense. Aaron has said the recoveries were justified by the injuries and losses involved, which no amount of money could make someone choose to experience.
His approach combines passion, preparation, persistence and courtroom imagination. He believes a well-supported, engaged and motivated team working cooperatively helps deliver strong representation, with the goal of achieving the best possible result for every client.
Dallas roots, military service & publication
Born and raised in Dallas, Aaron enlisted in the United States Marine Corps after high school and later received an Honorable Discharge. He completed his university and law degrees after his military service and became a lifelong Sooners football fan in law school.
Publication: “Litigating Dog Bite Cases,” Texas Dog Law Seminar, Dallas, 2009.
Professional affiliations & recognition
Professional affiliations and recognition listed in Aaron’s biography:
- State Bar of Texas
- American Bar Association
- Association of Trial Lawyers of America (now American Association for Justice)
- Texas Trial Lawyers Association
- Dallas Trial Lawyers Association
- Dallas Bar Association
- Tarrant County Bar Association
- Million Dollar Advocates Forum
- The National Trial Lawyers – Top 100 Trial Lawyers