Licence Appeal Tribunal File Number: 20-013031/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:
Amarjeet Singh
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Navjot (Shiwali) Bhatia, Paralegal
For the Respondent:
Pamela Quesnel, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Amarjeet Singh, the applicant, was involved in an automobile accident on March 17, 2018, 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, Aviva General Insurance, 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 $1,026.00 for a sleep study analysis, proposed in a treatment plan dated December 23, 2020?
ii. Is the applicant entitled to $2,034.00 for an EEG analysis, proposed in a treatment plan dated December 23, 2020?
iii. Is the applicant entitled to $2,200.00 for an occupational therapy assessment proposed in a treatment plan dated August 9, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The issue with respect to the applicant's entitlement to attendant care benefits was withdrawn by the applicant on October 28, 2022.
4The respondent agreed to fund a treatment plan for $2,200 for a SPECT scan dated November 19, 2020, and both parties have agreed that issue is no longer in dispute.
PRELIMINARY ISSUE
5The applicant listed five other treatment plans as issues in dispute in her submissions:
i. $1,573.75 for chronic migraine management (Botox) proposed in a treatment plan dated January 23, 2020;
ii. $2,460.00 for a neurological assessment proposed in a treatment plan dated June 8, 2021;
iii. $2,460.00 for occupational therapy services proposed in a treatment plan dated May 8, 2018;
iv. $2,674.56 for occupational therapy services proposed in a treatment plan dated June 18, 2019; and
v. $4,084.82 for psychological treatment proposed in a treatment plan dated July 10, 2018.
6The respondent submits that these issues were raised for the first time in the applicant's submissions, and none of those treatment plans are properly before the Tribunal and therefore should not be considered.
7The issues in dispute listed in the Case Conference Report and Order of Adjudicator Kaur of February 8, 2022 do not include any of these additional treatment plans. Further, the applicant brought a motion to add the treatment plan submitted August 9, 2021 for an occupational therapy assessment as an issue at this hearing, which was granted on March 25, 2022. At no point prior to her submissions did she request that the other five treatment plans be added as issues in dispute.
8The applicant did not address this matter at all in her reply submissions. I also note that aside from listing these additional treatment plans, she does not address the merits of each of them specifically.
9I find that these additional treatment plans are not properly before me, and as such I decline to make a finding with respect to them. If the applicant wanted to add them as issues in dispute, she had the opportunity to do so by way of motion prior to the hearing of this matter. Clearly the respondent did not consent to having these issues added. In this instance, it would be procedurally unfair to the respondent if I made a determination with respect to these issues at this hearing.
RESULT
10The applicant is not entitled to $1,026.00 for a sleep study analysis, proposed in a treatment plan dated December 23, 2020.
11The applicant is not entitled to $2,034.00 for an EEG analysis, proposed in a treatment plan dated December 23, 2020.
12The applicant is entitled to $2,200.00 for an occupational therapy assessment proposed in a treatment plan dated August 9, 2021.
13The applicant is entitled to interest on overdue payments pursuant to s. 51 of the Schedule.
ANALYSIS
14To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
Is the applicant entitled to $1,026.00 for a sleep study analysis, proposed in a treatment plan dated December 23, 2020?
15The respondent submits that the applicant is not entitled to a sleep study because there is minimal supporting documentation that it is required. The respondent also relies on the s. 44 report of Dr. Connolly, neurologist, from August 7, 2020, who believed that the applicant's cognitive difficulties and post-traumatic headaches were due to physical complaints rather than post-accident concussion syndrome. Dr. Connolly stated that a sleep study was not reasonable or necessary, as obstructive sleep apnea (OSA) as a sequelae of traumatic brain injury is not confirmed in the medical literature, and the use of a home-based apnea monitor to confirm the presence of OSA was not proven. She recommended instead that the applicant speak with her treating physicians in order to obtain a referral to a sleep clinic, clarify the cause of her sleep issue, and determine the appropriate therapeutic option under the guidance of a sleep-medicine specialist.
16The applicant submits that her symptoms are not secondary to ongoing physical complaints, as Dr. Mehdiratta diagnosed a traumatic brain injury/post-concussion syndrome in his neurology assessment report of August 11, 2021. She lists the treatment recommendations made by Dr. Mehdiratta as consisting of a sleep study, botox injections for chronic migraines, and 12-24 sessions of concussion rehabilitation. The applicant also relies on the psychological assessment report of Helen Ilios and Dr. Andrew Shaul, who noted that the applicant was suffering from sleep difficulties.
17It appears that with respect to this treatment plan, there is not necessarily a disagreement that the applicant has sleep difficulties. There is a disagreement as to whether a sleep study should be conducted in the manner suggested by the treatment provider.
18The applicant did not make any submissions with respect to the method of sleep study, and why it was recommended as opposed to an assessment with a sleep-medicine specialist. The only reference to a home-based sleep study is indicated in the treatment plan itself. I note that Dr. Mehdiratta did not specify the type of sleep study required in his consultation note or report and did not comment on the issues that Dr. Connolly had with the home-based apnea monitor.
19Finally, I note that Dr. Baird, certified life care planner, prepared a future cost of care report on February 3, 2022. Dr. Baird consulted with Dr. Kaushal, the applicant's family physician, who advised her that he did not believe a sleep study was warranted, given that the applicant's sleep issues are primarily due to pain and psychological concerns.
20The applicant bears the burden of proving that the treatment plan is reasonable and necessary. The applicant has not provided any evidence to refute Dr. Connolly's opinion that a home-based apnea monitor is not warranted, and in fact her family physician does not believe that a sleep study is indicated at all. I find that the applicant has not met her burden, and this treatment plan is not payable.
Is the applicant entitled to $2,034.00 for an EEG analysis, proposed in a treatment plan dated December 23, 2020?
21The respondent submits that the applicant is not entitled to an EEG analysis because there is minimal supporting documentation that one is required. The respondent also relies on Dr. Connolly's report, which states that an EEG does not yield a strong clinical value, and that if the applicant sustained a mild traumatic brain injury, the EEG would not provide further information that may predict her symptoms, their severity, or her prognosis.
22The applicant does not make specific submissions with respect to why an EEG is reasonable and necessary, aside from referring to Dr. Mehdiratta's report and disagreeing with Dr. Connolly's opinion as to the etiology of her symptoms.
23The treatment plan itself notes that a quantitative EEG analysis provides "objective evidence in the diagnosis of traumatic brain injury". The goals listed in the treatment plan were "further specification and analysis of presenting symptoms" and "to determine appropriate treatment to address presenting symptoms". Appended to the treatment plan was the neurology consult note from Dr. Mehdiratta of January 22, 2020. Dr. Mehdiratta makes a number of recommendations in his consult note, however he does not mention the need for an EEG. In Dr. Mehdiratta's report of August 11, 2021, he does not explain why an EEG was required, and he does not provide information to contradict Dr. Connolly's opinion with respect to the EEG.
24There is no indication in any of the reports or records before me as to why an EEG should be done. Despite the denial, the applicant underwent the EEG testing on November 19, 2020. The EEG report states that the applicant's "Brain Function Index" results were average or above average. There is a warning indicated in the results stating that the testing "does not indicate the likelihood of the presence or absence of structural brain injury." The report also states that the applicant's Structural Injury Classifier was positive, which only meant that further evaluation was warranted. The applicant has not explained what value this examination had in meeting the goals specified in the treatment plan. The evidence provided does not show that the EEG results led to diagnoses or recommendations for treatment.
25I find that the applicant has not met her burden in proving on a balance of probabilities that this treatment plan is reasonable and necessary.
Is the applicant entitled to $2,200.00 for an occupational therapy assessment proposed in a treatment plan dated August 9, 2021?
26The applicant submits that she continues to struggle with pain and psycho-emotional concerns that are impacting her ability to return to her previous activities. She argues that occupational therapy has been recommended by Mr. Madan (occupational therapist), Mr. Gilchrist (occupational therapist), Dr. Kurzman (neuropsychologist), Dr. Lang (physiatrist), and Dr. Mehdiratta (neurologist).
27The respondent relies on the report of Dr. Connolly and Dr. Kleiner, both neurologists, in support of the denial of this treatment plan. Dr. Connolly did not comment on the need for an occupational therapy assessment, but the respondent submits that she opined that there was no neurological basis for the applicant's symptoms, although potentially a psychological basis. Dr. Kleiner stated that, strictly from a neurological perspective, the treatment plan was not reasonable and necessary.
28I prefer the opinions of the assessors relied on by the applicant over the opinions of Dr. Connolly and Dr. Kleiner. Dr. Connolly and Dr. Kleiner commented from strictly a neurological perspective, however the evidence indicates that the applicant is also suffering from pain, functional limitations, and psychological difficulties. Their opinions with respect to this treatment plan are narrow in scope and therefore have limited value in determining this issue. Dr. Kleiner's opinion appears to largely stem from the fact that she disagreed with the diagnoses listed in the treatment plan. Further, Dr. Kleiner's assessment was conducted virtually, and she even noted that her exam was limited as a result.
29Conversely, occupational therapy was recommended by quite a few treatment providers and assessors, and not just from strictly a neurological perspective. In addition to the practitioners indicated by the applicant in her submissions, I also note that Dr. Baird spoke with Dr. Kaushal and the applicant's psychotherapist, Ms. Ramnarine, who both supported occupational therapy interventions.
30Despite the denial, the applicant underwent an occupational therapy assessment with Mr. Gilchrist, and he stated that the applicant was reliant on her daughter for aspects of her personal care, she had restricted mobility, and was prevented from resuming the caregiving tasks she provided to her husband. He recommended occupational therapy sessions, which included the Progressive Goal Attainment Program in order to reduce psychosocial barriers and facilitate increased activity participation.
31It appears that the applicant has functional limitations such that exploring her occupational therapy needs was appropriate. I therefore find that the applicant has proven on a balance of probabilities that this treatment plan is reasonable and necessary.
Interest
32Having determined that the occupational therapy assessment is payable, it follows that interest applies pursuant to s. 51.
ORDER
33The applicant is not entitled to $1,026.00 for a sleep study analysis, proposed in a treatment plan dated December 23, 2020.
34The applicant is not entitled to $2,034.00 for an EEG analysis, proposed in a treatment plan dated December 23, 2020.
35The applicant is entitled to $2,200.00 for an occupational therapy assessment proposed in a treatment plan dated August 9, 2021.
36The applicant is entitled to interest on overdue payments pursuant to s. 51 of the Schedule.
Released: June 8, 2023
Rachel Levitsky
Adjudicator```