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I’m a pharmaceutical salesman who works on commission. After I was injured, I probably lost a lot of money because I couldn’t make calls on my clients to deliver samples, take orders, or sign on any new clients for a few weeks. Am I entitled to compensation for the money I would probably have earned?
The short answer is yes. Now let’s back up a bit and talk about how you would go about proving what your potential losses are. You don’t know what orders might have been made, what new clients might have signed on, how much future commission you will lose as a result of the time you had to take off. A lot of work on your part will be required in order to prove your case. Some attorneys will do it on their own, but often they will want to hire an expert in forensic economics or a CPA to figure out these questions.
As a salesman, you likely keep a day planner of some sort with all of your calls and appointments. Your attorney or expert will ask you questions, as for example, did someone make the calls on your behalf, deliver your samples and cover those appointments for you during your absence? If so, did it turn into business for your company? Did it translate into any commission for the person who covered for you or for you? You and your attorney will need to track that information down. If no one covered for you, did you lose the business entirely to another pharmaceutical company? Is there a chance of still getting that business? If so, will that be at the cost of losing business elsewhere due to the additional time it will take?
The clients or potential clients will need to be questioned to find out some of this information, as well as any business associates of yours who stood in for you. Even with all of the answers and an expert to put some figures together, much of the lost potential income question is still speculative and subject to heated rejection by the other side, especially by the insurance company for the opposing party.
At the very least, you are still entitled to your lost earning capacity, which is the value of the work time you lost as a result of being injured. Since you work on commission, proof of your earning capacity will have to be offered via your tax returns for the last few years. Usually these are averaged, but that, too, is arguable by either side, since there may be an upward or a downward slope in your earnings over the years. If upward, you may want to argue that you have earned more each year, and this year would be no exception. If downward, the other side will undoubtedly argue that there is a pattern of less earnings each year, and they’ll want to give you less than the average.
Again, the speculative question will be the potential lost income from commissions over and above what you’ve averaged over the last few years for the time you lost. Although it takes a lot of work to put together your proof, it certainly can be done with a good attorney and possibly that economic expert to assist. |
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