Lieberman v. Walmart

Insurance Company

Claims Management

Date Decided

August 12, 2016

Panel Members

Glen Goodnough

David Hirtle

Tom Pelletier


Partial Benefits / Refusal of Employment


Work Restrictions Incapacity Benefits §214(1)(D)(3) Average Weekly Wage Calculation of Benefits

File Size

237 KB


Summary from the Troubh Heisler Attorneys

The Board can apply §214(1) (D)(3) rather than (D)(2), if the employee is requesting prospective benefits and not retroactive benefits.

In 2009 Lieberman hurt his knee as a moving van driver, which required him to pack, transport and unpack household items, and he was apparently paid WC benefits based on an AWW of $2222. A few months later, Wal-Mart abolished that position, but in August 2012 Lieberman returned to work without any work restrictions as a truck driver without the responsibility for loading and unloading the vehicle, with an AWW of $840. He apparently aggravated his prior work injury and his doctor gave him restrictions that Wal-Mart could not accommodate, so he went out of work again and Wal-Mart again paid him incapacity benefits but terminated his employment in August 2013. Lieberman found another job paying $250 per week.

Lieberman requested benefits based on the difference between his 2009 AWW and his current earnings, citing §214 (1) (D)(3). Walmart argued that Lieberman had worked more than 100 weeks as a truck driver, thus establishing a new wage earning capacity under subsection (2), so his benefit should be based on the difference between his 2009 AWW and his 2012 AWW.

Judge Knopf disagreed and applied subsection (3), awarding compensation benefits the maximum rate. Wal-Mart appealed arguing that the judge should have determined his new wage earning capacity. The appellate panel upheld her decision because Lieberman requested benefits only after he had become reemployed – if he had requested a retroactive award, the judge may have been required to apply (2).

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