AMI 2207 Measure of Damages—Loss of Earning Capacity

This clause is to be inserted between the two paragraphs of AMI 2201 when the evidence justifies its use.

Do not use this instruction when the bracketed material of AMI 2206 relating to future losses, is used.

Damages for loss of earning capacity may be recovered only upon proof that an injury is permanent. Wheeler v. Bennett, 312 Ark. 411, 849 S.W.2d 952 (1993). A permanent injury is one that deprives the plaintiff of his right to live in comfort and ease without added inconvenience or diminution of physical vigor. Adkins v. Kelly, 244 Ark. 199, 424 S.W.2d 373 (1965); Wheeler, supra. Loss of earning capacity is the present value of the loss of ability to earn in the future, however, and is a separate element of damages from permanency of injury. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999).

Loss of earning capacity differs from loss of income since there may be a loss of past and future income with no loss of earning capacity. Conversely, there may be a loss of earning capacity with no loss of past or present income. Hogan v. Hill, 229 Ark. 758, 318 S.W.2d 580 (1958); Britt Trucking Co. v. Ringgold, 209 Ark. 769, 192 S.W.2d 532 (1946).

Proof of loss of earning capacity does not require the same specificity or detail as does proof of loss of future wages. Arthur, supra.

If there is proof of permanent disability this element of damages may be submitted to the jury even in the absence of specific evidence of pecuniary loss due to inability to earn in the future. Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829 (1992).

In the absence of direct proof of the value of the diminished capabilities, the probable diminution of earning capacity may be inferred from the nature of the injuries. Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 784 S.W.2d 755 (1990).

A numerical “impairment rating” is not essential to recovering for loss of earning capacity. Wheeler, supra.

For a discussion of the distinction between loss of future earnings and loss of future earning capacity, see Cates v. Brown, 278 Ark. 242, 645 S.W. 2d 658 (1983).