Dr. Denton Buchanan

Liberty Mutual appealed an arbitration order requiring it to pay a loss of earning capacity benefit based on a pre-accident earning capacity of $31,000 and a residual earning capacity of zero.

The Director's Delegate upheld the finding of zero residual earning capacity, noting it was supported by evidence that the claimant could not work reliably or consistently.

However, the Delegate allowed the appeal regarding pre-accident earning capacity, finding the Arbitrator erred in law by failing to consider the credibility of the claimant's undocumented assertion that she was about to open a third gas station.

The issue of pre-accident earning capacity was remitted to the Arbitrator.

The applicant was injured in a motor vehicle accident and sought a loss of earning capacity benefit (LECB) from the insurer.

The parties disputed the applicant's residual earning capacity (REC) and pre-accident earning capacity (PEC).

The arbitrator found that the applicant suffered from severe migraines and cognitive deficits, rendering her unable to sustain competitive employment, resulting in a REC of $0.

The arbitrator determined her PEC to be $31,000 based on her best 52 weeks of reported income plus expected income from a new business location.

The insurer was ordered to pay the LECB based on these figures, indexed for inflation.

Additionally, the arbitrator awarded a $500 special award against the insurer for unreasonably relying on an outdated and inaccurate assessment to make a low LECB offer.

The applicant was injured in a serious motor vehicle accident and received income replacement benefits (IRBs).

The insurer terminated IRBs after the applicant attempted a return to work but had to stop due to severe headaches and vomiting.

The insurer later reinstated benefits and paid arrears on the eve of the arbitration hearing.

The arbitrator found that the insurer unreasonably withheld benefits by ignoring the overwhelming medical evidence from treating practitioners and selectively reading its own experts' reports.

The arbitrator awarded a special award of $25,000, inclusive of compound interest, under s. 282(10) of the Insurance Act.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them, alleging his ongoing disability was due to a pre-existing congenital neck condition, degenerative changes, or self-limitation.

The arbitrator found that while the congenital condition was not caused by the accident, the accident injuries combined with the fear generated by the discovery of the condition led to a chronic pain syndrome.

The arbitrator rejected the insurer's video surveillance evidence as proof of ability to return to work and ordered the reinstatement of income replacement benefits.

The applicant, a child care provider, was injured in a rear-end motor vehicle accident and claimed statutory accident benefits.

The insurer terminated her weekly income replacement benefits on multiple occasions.

The arbitrator found the applicant credible and accepted medical evidence that she developed chronic pain syndrome as a result of the accident, rendering her substantially disabled from performing the essential tasks of her employment.

The arbitrator ordered the insurer to pay income replacement benefits for the disputed periods and ongoing.

Additionally, the arbitrator found the insurer acted unreasonably in prematurely terminating benefits and awarded a special award of $3,500, along with interest and arbitration expenses.

The applicant, a self-employed pedorthist, was injured in a motor vehicle accident and claimed statutory accident benefits.

The insurer disputed her entitlement to income replacement benefits, arguing she was not substantially disabled and disputing the calculation of her post-accident business expenses.

The arbitrator found the applicant suffered a mild traumatic brain injury and was substantially disabled until October 1995.

The arbitrator allowed most of the applicant's post-accident business expenses, finding they were reasonably incurred to prevent a loss of revenue in her expanded business, but denied her claim for loss of profits.

The arbitrator also awarded various medical and rehabilitation benefits, including psychological counselling and a treadmill.

A special award of 35% was imposed against the insurer for unreasonably delaying and withholding benefits, particularly psychological counselling, despite recommendations from multiple assessors.