Colin Still

The insurer appealed an arbitrator's decision awarding the insured a loss of earning capacity benefit of $459.58 per week and sought a stay of the order pending the appeal.

The Director's Delegate applied the three-part test for a stay, focusing heavily on the hardship to the parties.

Finding that withholding ongoing benefits would cause significant hardship to the impecunious insured, the Delegate refused to stay the ongoing payments.

However, given the large accumulation of arrears (approximately $82,000) and the risk of non-recovery if the appeal succeeded, the Delegate granted a partial stay, staying the arrears accumulated between October 1996 and December 1999, while ordering the payment of arrears from January 2000 onwards.

The applicant, a registered nurse, was struck by a vehicle and sustained a knee fracture.

She applied for statutory accident benefits, and the insurer paid income replacement benefits until terminating them based on a residual earning capacity assessment that concluded she could work full-time as a clinic nurse.

The arbitrator found that while the applicant was physically capable of light nursing duties, such positions were not accessible to her in her area due to a poor job market, resulting in a residual earning capacity of nil.

The arbitrator also determined that the applicant's pre-accident earning capacity should be calculated by converting her part-time nursing income to full-time income under section 86 of the Schedule, as there was a real possibility she would have secured full-time employment but for the accident.

The applicant was awarded ongoing loss of earning capacity benefits, but her claim for a special award was dismissed as the insurer's conduct did not amount to an unreasonable delay or withholding of benefits.