[M.G.] v. Primmum Insurance Company, 2025 CanLII 125963

Citation: [M.G.] v. Primmum Insurance Company, 2025 CanLII 125963

Licence Appeal Tribunal File Number: 24-004071/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

[M.G.] (A minor by their litigation guardian, [K.W.]) Applicant

and

Primmum Insurance Company Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Diane Parsons, Counsel

For the Respondent: John Lykos, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant, was involved in an incident on January 16, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Primmum Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to attendant care benefits in the amount of $2,033.41 per month from October 10, 2023 to date and ongoing?

ii. Is the applicant entitled to $5,287.30 for occupational therapy services proposed by Innovative OT in a treatment plan date August 14, 2023?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant is not entitled to attendant care benefits.

4I find that the applicant is not entitled to the treatment plan for occupational therapy services, dated August 14, 2023.

PROCEDURE

Applicant’s late written submissions

5The respondent submits that the Case Conference Report and Order, dated August 14, 2024, ordered the applicant to provide his submissions by no later than 30 days prior to the written hearing on May 16, 2025. The applicant provided his submissions to the Tribunal and the respondent on April 28, 2025, 12 days late. The respondent therefore submits that it has suffered prejudice because it had less time to review the evidence and file its own responding submissions.

6Although the applicant did not make any reply submissions to explain the reason why his submissions were late or to address any prejudice to the respondent, I am exercising my discretion and including the applicant’s submissions in the hearing record. I find that dismissing the application without determining the merits is not appropriate as there is no evidence that any of the circumstances set out in Rule 3 of the Licence Appeal Tribunal Rules, 2023, would apply.

7I further find that despite the applicant’s late filing and service of his submissions, the respondent was able to provide its responding submissions and has not provided me with any evidence that it was unable to respond to the applicant’s submissions fully.

8For the reasons outlined above, I accept the parties’ submissions as filed.

Background

9The applicant was born on May 8, 2014. At the age of four, he was diagnosed as being on the autism spectrum as a result of developmental delays and specifically delayed speech. Prior to the incident, he had just begun senior kindergarten and was placed in a specialized class designed to provide additional supports.

10On the date of the incident of January 16, 2020, the applicant was placed on a school bus designated for children with special needs. When the applicant was not dropped off at his home at the usual time, his mother called the bus company to inquire what happened. After waiting on the phone line for approximately forty minutes, the bus company informed the applicant’s mother that the applicant had been found sleeping on the bus alone in a bus depot. As a result of the incident, the applicant claimed to experience posttraumatic stress disorder (“PTSD”), increased separation and general anxiety, sleep disturbances and difficulties completing daily activities. The parties agree that this incident constitutes an “accident” under the Schedule.

ANALYSIS

Causation

11The respondent raises the issue of causation in its submissions. According to the Divisional Court decision in Sabadash v. State Farm, 2019 ONSC 1121 (“Sabadash”), the relevant test for causation is the “but for” test. The respondent submits that the applicant must show that his injuries would not exist “but for” the accident on a balance of probabilities. The respondent submits that the applicant has failed to prove that his treatment needs and attendant care needs, if any, relate to the subject incident as opposed to his pre-accident medical history of autism.

12The respondent submits that there is little evidence that any of the ongoing issues and treatment needs being claimed by the applicant are in any way still related to the incident on January 16, 2020. It refers to the records of Dr. [LA], which reveal limited evidence to support any ongoing need for support or services as a result of the incident. The respondent refers to the Clinical Notes and Records (“CNRs”) of Dr [LA], where the only time anything is truly mentioned about the applicant’s ongoing needs is in the weeks following the incident. The CNR notes that the applicant has been feeling scared since he was left on the school bus and cries out at night, and he does not want to be left alone since the incident. The respondent points out that otherwise, there is little in the CNRs to suggest an ongoing need or a need that is causally related to this incident.

13The respondent also refers to a letter written by Dr. [IM], to Dr. [LA], dated March 25, 2022, over two years post-accident. Dr. [IM] notes the diagnosis of autism spectrum disorder as of the age of three but goes on to indicate that the applicant is doing very well overall. The letter notes that the applicant is gifted in math and other skills, he is the highest functioning individual in his class of other autistic children, and he is enrolled in many extra-curricular activities.

14The respondent submits that even two years after the incident, the applicant is doing well according to his own treating physicians. He continues to engage with school, extra-curricular activities and is where he should be developmentally for a child with autism. The respondent argues that there is nothing in any of the CNRs which indicate any complaints of setbacks or issues caused by the incident on January 16, 2020.

15The respondent relies upon the Insurer’s Examination (“IE”) occupational therapy in-home assessment report of Atu Kaur, occupational therapist, dated September 15, 2023. Mr. Kaur concluded that while the applicant’s current functional status is identical to what it was prior to the incident, considering the applicant’s functionality and his pre-existing autism disorder, he seems to be functioning at an age-appropriate level with autism and does not require any additional attendant care assistance.

16The respondent relies upon the Tribunal decision in A.M. v. Certas Home and Auto Insurance, 2020 CanLII 63538 (ON LAT) (“A.M.”), where it was held that entitlement to disputed benefits must be denied where treatment providers make recommendations but do not address the issue of causation and whether the proposed treatment is directed to the pre-accident or post-accident medical issues.

17The applicant has not provided specific submissions with respect to the issue of causation. No reply submissions were provided by the applicant. However, in his submissions he states that his incident-related impairments and disabilities have affected many aspects of his development, including his ability to mature appropriately, to become independent with his activities of normal living, and reach developmental milestones regarding education and socialization. His ability to achieve normal cognitive and behavioural milestones has been negatively impacted due to the incident, however, he has made gains with therapy since the incident. Post-incident he received occupational therapy, psychological counselling and attendant care.

18The applicant relies upon the report prepared by Dr. Bita Sharifzadeh, psychologist, dated July 21, 2020, wherein a diagnosis of PTSD with mixed depression and anxiety was made as a result of the incident. He further relies upon the Occupational Therapy Functional Assessment report of Laura Cooper, occupational therapist, dated May 10, 2023, where she concludes that as a result of the incident, the applicant has experienced increased separation and general anxiety, sleep disturbance and difficulties in completing daily activities. The applicant also relies upon the Future Care Costs report of Ann Krause, occupational therapist, dated October 18, 2023, where she opined that as a result of being abandoned on the bus, the applicant suffered significant setbacks and psychological sequelae.

19I find that it is undisputed that the applicant suffered from autism at the time of the incident. It is further undisputed that following the incident, the applicant suffered from increased separation and general anxiety, sleep disturbances and difficulties in completing daily activities. I find that the report of Dr. Sharifzadeh, dated July 21, 2020, diagnosed the applicant with PTSD, depression and anxiety as a result of the incident, for which he received treatment.

20The issue before me is whether at the time of submission of the treatment plan in dispute on August 14, 2023, and the Form 1 on October 10, 2023, the applicant was suffering from an impairment as a result of the incident or whether his impairments were as a result of his pre-existing diagnosis of autism.

21I find that the applicant did not provide any medical evidence for the period following the report of Dr. Sharifzadeh dated July 21, 2020 up until the occupational therapy report of Ms. Cooper dated May 10, 2023. I find that there is a significant lapse in medical evidence as to what took place during this time period. I find that there are no CNRs from Dr. [LA] regarding the applicant’s impairment following the incident after the initial appointment on January 20, 2020 that would provide insight into the cause of his impairments.

22I find that the letter from Dr. [IM] dated March 25, 2022, does not mention the incident or any psychological issues or adjustment issues that the applicant is suffering. The applicant’s mother reinforces to Dr. [IM] how well the applicant is doing functionally and advises Dr. [IM] that he is very high functioning, and he is gifted in math and other skills. She notes that the applicant is currently the highest functioning of his class, and he does very well academically. She notes he gets occupational therapy because of difficulty with fine motor skills and his mother keeps him active by enrolling him in extracurricular activities. Dr. [IM] notes that the applicant’s mother stated that he is an otherwise healthy child, and his mother had no concerns today. I find that the reports made to Dr. [IM] are inconsistent with the applicant’s submissions that he continues to suffer an impairment as a result of the incident. The applicant’s mother gave no indication to Dr. [IM] that the applicant was suffering from any ongoing issues as a result of the incident.

23I further find that despite Dr. [IM] referring the applicant for a formal developmental evaluation and requesting that the applicant come to her office for a check up, no such report or CNRs from this visit were submitted to the Tribunal by the applicant.

24I find that other than the records of Dr. [LA], and the letter from Dr. [IM], there are no treatment records provided which document the applicant’s ongoing needs or impairments. The applicant has indicated that he attended for psychotherapy and occupational therapy however, no records from these treating practitioners have been provided. In addition, no school records have been provided to document any ongoing difficulties.

25Upon review of Ms. Cooper’s report, dated May 10, 2023, she notes that she has seen the applicant weekly for occupational therapy appointments. However, the CNRs from her treatment of the applicant that sets out his progress and ongoing limitations have not been provided. I find that Ms. Cooper concludes that the applicant experiences challenges in his daily activities due to psycho-emotional and physical issues. From a psycho-emotional perspective, he continues to exhibit heightened anxiety since the incident. She also notes that the applicant’s anxiety has decreased since the implementation of occupational therapy. I find that while an occupational therapist can make observations, she cannot provide a psychological diagnosis with respect to the cause of an impairment. I therefore give less weight to her findings than those of a treating practitioner in terms of the causation of his current limitations. I reiterate that there is no updated psychological assessment and the CNRs of Dr. [LA], and Dr. [IM], do not support any ongoing impairments as a result of the incident. I further find that the conclusions reached by Ms. Cooper are not consistent with the applicant’s mother’s report to Dr. [IM] that she had no concerns about the applicant, and he is a healthy child.

26I further find support for the respondent’s position with respect to causation in the IE report of Mr. Kaur where it is noted that since the incident, the applicant has returned and resumed riding as a passenger on a school bus and continues to attend his school. While Mr. Kaur notes that the applicant continues to have behavioural issues related to his autism, in terms of functionality, there is no identifiable change of status in his pre- and post-incident function

27Considering the above, I do not find that the applicant has proven on a balance of probabilities that he continues to suffer an impairment as a result of the incident. I do not find that the applicant has demonstrated that the incident was a necessary cause of his current impairments.

Entitlement to Attendant Care Benefits

28The applicant claims entitlement to $2,033.41 per month from October 10, 2023 to date and ongoing based on the Form 1 dated September 26, 2023. As I have found that the applicant has not proven on a balance of probabilities that his impairments at the time of submission of the Form 1 were caused by the incident, I find that the applicant is not entitled to the claimed attendant care benefits.

Entitlement to the treatment plan for occupational therapy services.

29The applicant claims entitlement to $5,287.30 for occupational therapy services proposed in the treatment plan dated August 14, 2023. As I have found that the applicant has not proven on a balance of probabilities that his impairments at the time of submission of the treatment plan were caused by the incident, I find that the applicant is not entitled to the treatment plan in dispute.

ORDER

30For the reasons outlined above, I find:

i. The applicant is not entitled to attendant care benefits;

ii. The applicant is not entitled to the treatment plan for occupational therapy services, dated August 14, 2023;

iii. The application is dismissed.