Dr. Oshidari

The appellant appealed a License Appeal Tribunal decision denying him income replacement benefits following a motor vehicle accident.

The adjudicator had preferred the medical evidence of the respondent's physiatrist over the appellant's physiatrist, concluding the appellant did not suffer a substantial inability to perform his pre-accident employment tasks.

The Divisional Court dismissed the appeal, finding that the adjudicator applied the correct legal test and that weighing conflicting medical evidence does not constitute an error of law.

The appellant was injured in a motor vehicle accident and suffered a brain impairment.

His initial Glasgow Coma Score (GCS) was 3 out of 15, but improved to 14 out of 15 shortly after arriving at the hospital.

The trial judge ruled that the appellant did not suffer a catastrophic impairment because his GCS scores improved.

The Court of Appeal allowed the appeal, holding that the statutory definition of catastrophic impairment under O. Reg. 461/96 only requires a single GCS score of 9 or less within a reasonable time following the accident, provided there is a brain impairment.

The fact that subsequent scores were higher is irrelevant.