Dr. Fogarty

The appellant, who suffered a catastrophic brain injury in a 1999 motor vehicle accident, appealed and sought judicial review of a Licence Appeal Tribunal decision regarding his entitlement to attendant care benefits.

The LAT had awarded a minimal monthly amount, focusing on the care actually provided by his family rather than his need for supervisory care due to his inability to respond to emergencies.

The Divisional Court allowed the appeal and granted the judicial review, finding that the adjudicator erred in law by failing to apply the correct legal test under the 1996 SABS and that the decision was unreasonable.

The matter was remitted for a new hearing before a different adjudicator.

The applicant sought a determination that she sustained a catastrophic impairment (Criterion 8) due to psychological impairments following a motor vehicle accident, as well as entitlement to a treatment plan for optometric services.

The Tribunal found that while the applicant had marked impairments in Concentration, Persistence and Pace, and Adaptation, she did not meet the threshold of three marked impairments or one extreme impairment required for catastrophic designation.

The Tribunal also dismissed the claim for optometric services, preferring the respondent's ophthalmological assessment that found no accident-related ocular sequelae over the applicant's neuro-optometrist report.

The application was dismissed in its entirety.

The applicant suffered a catastrophic brain injury in a 1999 motor vehicle accident.

The respondent insurer initially paid attendant care benefits (ACB) but reduced and then suspended them in November 2000 without proper notice.

The applicant sought retroactive and ongoing ACB at 24-hour care levels.

The Tribunal found that 24-hour care was not medically necessary, as the applicant had achieved a level of independent living with family support.

The Tribunal upheld the $120.40 monthly rate but ordered a top-up for two six-month periods following changes in living arrangements.

The Tribunal also awarded a 10% penalty under section 10 of Regulation 664 due to the insurer's 20-year delay in reinstating the suspended benefits, along with 2% monthly interest under the 1996 Schedule.