Can a lost income claim include overtime and commissions?
Yes. A lost income claim in New Jersey can include overtime, bonuses and commissions when the evidence connects that loss to the injury. Your regular paycheck is a starting point, not necessarily the full measure of what you earned. If working additional shifts or closing sales was an established part of your employment, that deserves attention in the case.
Your earnings history can help show what an injury has actually cost you. I would want to understand how your compensation worked before calculating a loss. A person who regularly worked Saturday shifts has a different record from someone who hoped to start doing so. Both deserve a careful conversation, but the supporting proof will be different.
Start with the work you actually performed
Explain your job in practical terms. The title on a pay stub may tell me very little about the physical demands or how additional income was earned. Someone may return to a desk assignment while remaining unable to perform the fieldwork that generated commissions. Another person may work a normal week but be medically unable to take the overtime that previously made a substantial difference to the household.
That distinction helps avoid an incomplete calculation. Returning to work does not necessarily mean returning to the same earning ability. I compare the duties you performed, the medical restrictions and the compensation you received during that period. An employer's records can help establish when your responsibilities changed and whether those changes affected your pay.
It also matters whether you actually lost compensation. Paid leave, an employer's continuation of salary or another benefit can raise separate questions about the damages calculation and reimbursement. I review the arrangement rather than treating every day away from work as an unpaid day.
Establish a fair baseline for variable compensation
For overtime, prior pay statements may show a consistent pattern across several months or years. The employer may be able to confirm that overtime remained available while you were out. Comparing that information with your medical restrictions helps explain what you probably would have earned.
Commissions require a closer look at how sales turn into compensation. An account may have been developed before the accident but paid afterward. A sale may have been reassigned because you could not service the customer. The timing of a deposit alone may not explain either situation. Commission statements and the underlying compensation agreement can make the difference clearer.
Bonuses vary considerably. Some depend on a written formula; others involve an employer's discretion. A history of receiving a bonus may support the claim, but I would also want to know whether the relevant goals were met and whether the company paid comparable bonuses that year. The objective is a reasonable estimate supported by records, not an assumption that every possible payment would have occurred.
Account for a promotion or a changing business
Past earnings are useful, but they should not freeze someone at an outdated pay level. A promotion approved before the injury may support a higher expected income. A written offer, revised compensation plan or supervisor's testimony may explain a change that is not yet reflected in a tax return.
The same care applies when business conditions changed. If a department eliminated overtime for everyone, the calculation needs to account for that. If comparable employees continued receiving substantial overtime, that may help demonstrate the opportunity you lost. Addressing those facts directly makes the claim easier to evaluate and defend.
For a self-employed person, business revenue and personal earnings are not always interchangeable. Expenses may continue even when work stops, while some sales may simply be delayed. An accountant's records can help distinguish an actual economic loss from a temporary change in cash flow.
Connect the earnings loss to the injury
The medical and employment evidence need to fit together. A physician can explain restrictions associated with the injury. An employer can explain the work available and what it paid. Neither record necessarily answers the entire question by itself.
There may also be a gradual return rather than a clear dividing line between working and not working. Reduced hours, modified duties and attempts to resume a demanding task can provide important context. Keep the actual dates and communications so the timeline can be reconstructed accurately.
New Jersey's model jury instructions address lost earnings and impairment of earning capacity. A claim for future loss may require a broader assessment than adding missed paychecks. Depending on the disability and the work involved, vocational or economic testimony may help explain the effect on future earning ability. That is a case-specific decision, not a requirement for every temporary absence.
Build a calculation the client can understand
I want you to be able to follow the calculation and recognize your own working life in it. If an estimate assumes ten overtime hours each week, we should be able to explain where that figure came from. If a commission was lost, we should identify the transaction and the reason it was affected.
Bring the records you have even if they are incomplete. We can identify what is missing and seek appropriate supporting information. Tax returns may be relevant, but their disclosure and any privacy concerns should be handled through the applicable process. Questions about the tax treatment of a recovery belong with a qualified tax professional.
A well-supported lost income claim gives the decision-maker more than a total on a page. It explains the work you could perform before the injury, what changed and why the resulting financial loss should be included in the evaluation of your case.
Sources and Further Reading
About Michael B. Fusco
Michael B. Fusco is a New Jersey personal injury attorney certified by the Supreme Court of New Jersey as a Civil Trial Attorney. Read Mike’s biography and credentials.
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