Dr. Kenneth Craven

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 received statutory accident benefits.

The insurer terminated weekly income benefits after 156 weeks.

The applicant sought ongoing benefits, claiming she was continuously prevented from working as a dressmaker due to chronic pain and fibromyalgia.

The arbitrator dismissed the claim for ongoing benefits, relying heavily on surveillance evidence that contradicted the applicant's reported functional limitations.

However, the arbitrator found that collateral benefits received by the applicant from private disability policies were not deductible from her pre-156 week income benefits, ordering the insurer to pay the shortfall with interest.

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Additionally, the arbitrator awarded a $500 special award against the insurer for unreasonably relying on an outdated and inaccurate assessment to make a low LECB offer.