This article will focus on seeking funding for sleep studies in mild traumatic brain injury cases.
Each Province will have specific regulations for accident benefits. This article will reference BC Legislation, INSURANCE (VEHICLE) REGULATION, [Last amended March 5, 2020 by B.C. Reg. 48/2020] – Part 7 — Accident Benefits. We will then go into specific cases dealing specifically with Sleep Studies in cases where injuries include mTBI.
Part 7 – Accident Benefits
The relevant section is enumerated:
88 (1) If an insured is injured in an accident for which benefits are provided under this part, the corporation must “pay as benefits all reasonable expenses incurred by the insured as a result of the injury for necessary”
- health care services listed in Column A of Table 1 or Table 2 in Schedule 3.1);
- occupational therapy provided by an occupational therapist; and
- dental, hospital, ambulance and professional nursing services, speech therapy, medication, prostheses and orthoses.
Column A of Table 1 enumerates the following treatment that is included:
Sleep Studies is not included in this list. Therefore you must seek funding in writing by the Corporation. See the following sections that are important to highlight:
88.01. Receipts must be produced by the insured within 60 days of incurring any expense, or they will not be compensated.
It is also important to keep in mind that if the treatment is required after 12 weeks from the subject accident, the treatment:
- “is not a necessary health care service unless the corporation’s medical advisor or the insured’s physician certifies to the corporation in writing that, in the opinion of the medical advisor or physician, the treatment is necessary for the insured.”
88 (3) before incurring expense….the insured shall obtain written approval from the corporation and the corporation may, before giving its approval, require the insured to submit such information as it considers necessary to assist it in making a decision
88(6) The corporation is not liable for any expenses paid or payable to or recoverable by the insured under a medical, surgical, dental or hospital plan or law, or paid or payable by another insurer, except expenses referred to in subsection (1)(a) and (b).
In home sleep studies can be useful to screen for sleep apnea and other sleep disorders which are commonly seen in patients with concussion and chronic pain.
An insurer may take an issue in funding sleep studies due to causation arguments. Arguments we have seen in the case law are that the sleep disturbance is as a result of a pre-existing psychological condition, or other factors other than mTBI.
Insurers will likely not fund sleep studies if you cannot show the following:
- Diagnosis of a sleep disorder;
- Must also note that the sleep disturbance or interruption is the cause of the injury;
- Symptoms are hopefully reported within 72 hours to 2 weeks of the injury (just a note);
- That improving sleep through sleep study will assist with ameliorating the Plaintiff’s function and disability.
Following are a few extracts from several decisions that may assist you with requesting funding for sleep studies. The last decision had quite a lengthy discussion on sleep, which is interesting. FYI
Headache and neck pain are intermittently intertwined. Lack of sleep can also affect function. I would immediately order a sleep study to assess his qualities of sleep and to see if there is a sleep misperception. We have no objective measure of his sleep. There are many ways to treat sleeping problems without requiring medications. This includes melatonin and the use of cognitive behavioural techniques. Sleep hygiene, however is the starting point in easy to apply.
Brain trauma is known to produce sleep disturbances in more than 50% of cases. To date, various medications have been of only limited help and have themselves resulted in side-effects which may have contributed to impairing his functioning. I am hopeful that he will have a formal sleep assessment in the near future, which may shed some light on this ongoing problem.
- Must diagnose a sleep disorder: and
- Must also note that the sleep disturbance or interruption is the cause of the injury.
- Symptoms are hopefully reported within 72 hours to 2 weeks of the injury (just a note)
Note: the defence neurologist in the above case stated that it was the sleep disorder that was the cause of all the “symptoms”, not mTBI, or in the alternative, psychological reasons that caused the symptoms.
This trial accepted that sleep was part of the injury:
On the evidence at trial, I find there is a reasonable prospect the plaintiff will improve, particularly with his anxiety and sleeping difficulties, which will reduce his chronic pain and headaches and thereby improve his work capacity over time.
The discussion on sleep in this case:
(iii) Sleep problems
 The plaintiff complains of ongoing sleep problems and the resulting fatigue he has suffered. The plaintiff reported this problem to Dr. M, it appears, as early as July 2005. The plaintiff indicated that his headaches occasionally interfere with his sleep.
 The plaintiff says he gets four to five hours of sleep per night, and has gone to the sleep clinic at UBC, where he has seen Dr. Allan for treatment. He takes melatonin and keeps a sleep diary to assist in his sleep.
 The parties each called witnesses who are sleep experts. The plaintiff called Dr. A.M., and the defendant called Dr. J.A. The study of sleep disorders appears to be a relatively new area of study.
 The experts disagreed on the cause of the plaintiff‘s apparent sleep problem.
 Dr. M., called by the plaintiff, was tendered as an expert in the field of psychiatry, internal medicine, and sleep disorder medicine. He described sleep disorder medicine as a field which deals with disorders related to sleep: difficulties falling asleep, staying asleep, or insufficient sleep, among other things. He runs the sleep laboratory in Richmond. The plaintiff was referred to Dr. M. in 2008 by Dr. D., a physiatrist who was treating the plaintiff. Dr. M. prepared reports dated May 3, 2006 and July 12, 2009.
 Dr. M. opined that the plaintiff has chronic refractory insomnia, which he thought was a direct consequence of the motor vehicle accident. He said the plaintiff has chronic pain related to this accident, and also has chronic anxiety with ruminations at night. Dr. M. said that the plaintiff most probably had a traumatic brain injury during this accident. The pain, anxiety and trauma to his brain were the most probable reasons why the plaintiff cannot sleep adequately at night. In Dr. M.s’ view, it would be difficult to assign weight to these individual factors in the causation of the plaintiff’s sleep problems. Any and all of these three factors can produce psycho-physiological insomnia, which Dr. M. said is an acquired behaviour and can assume a life of its own.
 Although Dr. M. thought that the pain, anxiety and trauma to the brain were the most probable reasons as to why the plaintiff could not sleep adequately at night, he said that if the traumatic brain injury was not a factor, any of the conditions described (anxiety, pain) could cause the condition that the plaintiff has. Dr. M. thought that chronic pain was notoriously difficult to treat, but some people, he said, do very well.
 When Dr. M. saw the plaintiff again in 2009, it was not for treatment purposes, but only for an independent consultation for litigation purposes.
 Dr. M. was asked on cross-examination about the Epworth scale, which is a subjective measure of a person’ sleepiness during the daytime. During those tests, the plaintiff’s results indicated that he was not sleepy during the day. Dr. M. was asked to reconcile that there were two Epworth scale tests showing a lack of sleepiness with the conclusion the plaintiff has a chronic sleep problem. Dr. M. replied that the test cannot be used in isolation to determine if the plaintiff was getting enough sleep.
 The plaintiff was referred to Dr. J.A. by Dr. M. Dr. J.A is a psychiatrist with her main area of practice in the area of mood disorders and anxiety. She was qualified to testify as an expert to give opinion evidence in the area of psychiatry and as a doctor with a special interest and experience in sleep disorders. Dr. A. prepared reports dated January 28 and May 20, 2009.
 She reported that during the day the plaintiff reported feeling fatigued, anxious, and that his concentration is poor. He attributes his fatigue and poor concentration to poor sleep at night, despite the fact he has an ongoing pain issue. She said that most patients with chronic pain will complain of feeling fatigued, anxious and having poor concentration. She felt that chronic pain was therefore an equally valid explanation for his daytime symptoms, as opposed to insomnia or secondary to disrupted sleep at night.
 Dr. A. stated her belief that the plaintiff has sleep state misperception, given the plaintiff’s perception that he is only sleeping four hours per night, but yet has absolutely no excessive daytime sleepiness.
 Dr. A. described sleep state misperception as a condition where a patient believes they do not sleep as much as they do, in fact, sleep. She said that the plaintiff reported only sleeping four hours per night. However, people sleeping less than six hours per night on the average tend to fall asleep during the day, and the plaintiff did not have that complaint. Dr. A. booked an actograph, a contraption that looks like a wristwatch, which can give a good estimate of the length of sleep, time in bed, and time of sleep throughout the day, as well as naps. Dr. A. testified that this is an “at home” study, so it was more reflective of a person’s normal sleep pattern. She said that in the plaintiff’s case, the subjective findings and the objective findings did not match, because the plaintiff claimed to be awake for a longer period of time than the actograph indicated. On cross-examination, she said that anxiety can develop as a result of insomnia, and also, anxiety can cause insomnia.
 Dr. A. agreed that sleep state misperception is not synonymous with malingering, and is a condition that itself can cause anxiety symptoms.
 In her May discharge summary, Dr. A. wrote:
At follow up he reverted to spending 7-8 hours in bed and again was having longer periods of time to fall asleep. While pursuing the sleep restriction he was falling asleep within 10-15 minutes. He also disputed the findings of the sleep study. He had five extremely brief awakenings during the night, all of which he claimed were much longer because he was aware of being awake for a long period of time. This is impossible. At follow up he continued to complain of anxiety, not being able to get interested in things, variable appetite and poor energy and concentration.
 Dr. A. said the plaintiff’s complaints do not sound like phase shifted sleeping pattern, although she could not rule that out entirely, as his sleep diary was out of date, and she described him as a relatively poor historian about his sleep. Phase sleep disorders relate to the timing of sleep rather than actual sleep itself.
 She agreed that, in general, chronic pain can be a potential underlying cause of insomnia. As the treating physician, she had not been shown any psychiatric opinions. She would not dispute that if the plaintiff was diagnosed by a psychiatrist as having a pain disorder or a generalized anxiety disorder and an adjustment disorder, that he would have a significant sleeping difficulty if those were true diagnoses.
 Dr. M. in reply to Dr. A.’s belief that the plaintiff may have sleep state misperception, encouraged caution, saying that such a patient may have fragmented sleep, which requires a very specialized EEG testing to discover.
 Dr. M. testified that because there was a question of the actograph malfunctioning with respect to possible sleep state misperception, he would have had the plaintiff maintain a sleep diary for two weeks, discarded the diagnosis of delayed sleep phase syndrome, and begin to consider other causes. He said he got the impression Dr. A. did not consider the plaintiff’s pain issue. Dr. M. was asked why he did not run tests, if he thought that Dr. A.’s testing might be flawed. He said that, as he understood it, there was no time for more testing of the plaintiff, and since the plaintiff was being treated by Dr. A. and not by him, he left it to Dr. A. and UBC Hospital.
 Dr. A. testified that she does not know why the plaintiff has developed phase delayed sleep syndrome, if that is his condition. She has not necessarily seen that condition develop in other patients with head injuries.
 The expert evidence concerning the plaintiff’s apparent sleep difficulties is inconclusive as to whether the plaintiff is actually lacking sleep, is simply misperceiving that he is lacking sleep, or is suffering fatigue from chronic pain.
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